2004 (5) TMI 342

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..... mall scale units under Notification No. 1/93-C.E., dated 1-3-1993. The appellants had affixed a brand Amba , on the excisable goods. As a result of goods bearing the brand name, the departmental authorities proceeded to hold that the said brand Amba belongs to a person, other than the appellants and hence are ineligible for duty exemption. The appellants had pleaded that their case is covered by the instructions contained in Board s Circular No. 52/52/94-CX, dated 1-9-1994. It was claimed that, the goods cleared with the brand name by each of the units are not the same, but are quite different. It was also pleaded that, the brand Amba does not belong to any particular person, and can be freely used by any one. However, these submission .....

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..... r (Appeals) tried to overcome this requirement of proving the ownership by stating that, each of the appellants had declared in the classification list that the goods bear the brand name Amba . We note that, the declaration that the goods are affixed with a brand name Amba cannot mean, as has been made out by the lower authorities that the brand belongs to each of them. We hold that, when the appellants are contesting the liability on the ground that the brand Amba does not belong to anyone, the burden is on the department to establish as to who the owner of the brand is, rather than saying that, each of the appellants owns the brand, which the appellants deny. Based on the declaration in the classification list to hold that, since the .....

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..... of the Commissioner (Appeals) that if the goods are inter related, use of brand names on such inter related goods shall amount to use of brand name on the same goods. We are unable to see any authority in the law to support such a contention. We also note from the Annexure to the impugned order-in-appeal, that the products are quite different from each other and do not appeal to be even functionally similar. 6. In the light of our observation above, we hold that the impugned order is not sustainable. The same is accordingly set aside and appeals of the appellants are allowed with consequential relief if any, in accordance with the law. 7. So far as the Appeal Nos. E/1996 to 1999/99-Bom. are concerned these are directed against the Order .....

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