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TMI Blog1993 (11) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ho themselves are not entitled for the exemption under Notification 175/86, as amended. The basis was para 7 of the Notification which says that the exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. The order of the Assistant Collector on being challenged before the Collector (Appeals) was remanded to the Assistant Collector by that authority for disclosing the evidence on which the exemption was denied. A de novo order was passed, which on being challenged has been disposed of by the Collector (Appeals) order dated 19-8-92 upholding the Assistant Collector s order. In another set of events arising from above, the department issued a show cause notice for short levy for the period 20-3-90 to 28-8-90 for recovery of the duty because it was found that during that period, the appellants had cleared the goods at nil rate of duty and this show cause notice was confirmed by the jurisdictional Assistant Collector, which was challenged before the Collector (Appeals), who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereto. I say and submit that in the said letter the Trade Mark Registry has also confirmed that the said registration shall not give any right to the exclusive use of the device of a pot of ice cream the word Kwality and the expression look for the Kwality seal . I annex here to marked as Annexure P2 a copy of the said letter dated 9-5-85. That I say and submit that the expression Kwality not being an invented word and being laundatory of any goods, the said expression is being used by a number of manufacturers of ice cream who are competing with each other. I further say and submit that in so far as the competitors are concerned they have been using the expression Kwality as part of the labels in addition to some device or the other on their labels and such use is not either permitted or authorized use by any other manufacturer. That in support of my above submission I annex hereto the specimen packings under use by various manufacturers. I annex hereto marked as Annexure P3 4 specimen packings being used by the Appellant. I annex hereto marked as Annexure P4 6 specimen packings being used by Kwality Ice cream, B-3, Cooperative Industrial Estate, Balanagar, Hyderab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise - 1993 (65) E.L.T. 69 (Tribunal); (iv) Collector of Central Excise v. Neoli Sugar Factory - 1993 (65) E.L.T. 145 (S.C.). 4. Smt. Shanti Sundaram, ld. SDR addressing the arguments on the additional evidence application, that the list of evidence submitted contain certain pieces of evidence were already before the lower authorities and for the rest it was submitted that the documents at Sl. No. 5-11 are not relevant to the case and the letter regarding registration of trade mark addressed to a person other than the appellants, namely, M/s. Acme Agencies, is also not relevant. On the merits of the case, the ld. SDR submitted that a disclaimer would disentitle the person applying for brand name to be called the owner thereof. The department in this case had produced evidence to show that K.I.C. Foods, New Delhi are the owners of the brand name Kwality . The ld. SDR pointed out that the provisions of Section 17 of the Trade and Merchandise Marks Act and disclaimer cannot be construed to mean that on such disclaimer the brand name is no more owned by the Proprietor thereof. The disclaimer, according to the ld. SDR, is only to define the rights of the propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered. Taking up firstly the misc. application under Rule 23 of CEGAT (Procedure) Rules, 1982 for adducing fresh evidence, it is found that not all the documents are fresh ones. The relevance of these documents for a proper disposal of the appeal has to be considered to decide whether to take them on record. The whole issue in the appeal involves interpretation of para 7 of Notification 175/86 and Explanation VIII thereof which are reproduced below : The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. Explanation VIII. - Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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