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TMI Blog2008 (9) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... m various units in cartons, which already carry the brand name. POY received by them was wound on paper tubes, which did not carry any brand name and after texturising they used the same cartons for packing the texturised yarn and cleared the same to the principal manufacturer, who after re-packed either sold the same in the market or sent the same further for twisting to other manufacturers. They also contended that there was a general practice in the texturising industry to re-use the cartons received from the POY manufacturers and the packing slips of the manufacturers are either pasted on the outside of the cartons or kept in the cartons only with the purpose to identify as to whom the goods belong, inasmuch as they received yarn for texturising purposes from various manufacturers. 3. While dealing with the above contentions, the adjudicating authority has observed that it is a general practice that texturisers used the second-hand cartons for packing the texturised yarn manufactured by them. The adjudicating authority has further observed that the goods are not physically available so as to find out whether such brand name was actually affixed or not, but has gone by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured and cleared to the brand name owner for further use as dyed yarn and was not being marketed by them, the Tribunal's decision in the case of M/s. S.A. Industries [2000 (121) E.L.T. 393 (Tri.)] would be applicable laying down that use of brand name on the covers will not amount to use of brand name on the goods. In any case, as already observed by us, such pasting of slips on the old and used cartons in which yarn is filled for the purposes of identification will not amount to use of brand name of another person, thus disentitling the appellant from the benefit of Notification No. 1/93. We accordingly set aside the impugned order and allow the appeals with consequential relief to the appellant." As such, we find that in the facts and circumstances of the present case, it cannot be held that the appellants are affixing the brand name of other processors on the textured yarn. As such, we hold that the benefit of small scale exemption cannot be denied to the appellants. 6. We also find that the demand is hit by the bar of limitation, Tribunal in the case of M/s. Ramply (India) Ltd. & Anr. [2007 (216) E.L.T. 129 (Tri.) = 2007 (82) RLT 363 (CESTAT-LB)] has held that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go and packing slip supplied by them were used. Shri Aakash K. Agarwal has stated that they were only traders. These inculpatory statements have not been retracted and in fact, the appellants had debited the amounts as soon as the case was registered. The appellants did not even reply to the show cause notice at the original adjudication stage. Therefore the inculpatory statements stand and even recipient who participated in the adjudication proceedings also did not say that their logo/brand name was not used on the goods supplied to them. Commissioner (Appeals) has clearly recorded a finding that appellants had used brand name/logo and the packing slip for affixing the same on the boxes and the paper tubes of texturising yarn manufactured and cleared from the factory of the appellants. The appeal memorandum submitted by the appellants also contains same facts and relevant portion of appeal memorandum is reproduced below : "Both the learned lower authorities have failed to appreciate that the case of the Department is that the appellants were affixing only stickers containing the details of the name of the raw material supplier, i.e. Modipon Fibre Company or Akash Filament and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1st March, 1986. That Notification also contained an explanation (being Explanation VIII) which in terms is identical to the Explanation under consideration by us. The Appellants therein used the following words : "MANUFACTURED IN INDIA BY NIPA CHEMICALS LTD., In Collaboration with Nihon Parkerizing Co. Ltd., Japan. 46, Garuda Buildings, Cathedral Road, Chennai-600086. MARKETED IN INDIA BY Goodlass Nerolac Paints Ltd., GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI-4000I3. " The Tribunal held that the use of these words did not preclude the Appellants (therein) from availing of the benefit of the Notification. To be immediately noted that in that case it was neither admitted nor proved that the words were used to indicate a connection between the product and Nihon Parkerizing Co. Ltd. The Tribunal so notes. Had the Tribunal based its decision on this aspect no fault could have been found. However, the Tribunal then goes on to hold as under : It is further mentioned in the above said explanation by "9. stating that the name or a mark means a symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desk. It is therefore seen that these are certain words enumerated 12. to project the name of the two particular companies and they do not come within the purview of "Writing" or "name". These are mere printed words indicating the names of two companies. Therefore, in our view, these will never come within the purview of "brand name" in view of the fact that they do not come within the meaning of "name" or "mark" which is elaborated in the explanation to "brand name" and this being the position, the arguments of the learned DR cannot be accepted..........." In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms "brand name or trade name" get qualified by the words which follow. The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monograph in a Pharmacopoeia Formulary or other publications notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958) or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person. Explanation : II. 'Alcohol', 'Opium', "Indian Hemp", "Narcotic Drugs" and 'Narcotics' have the meanings respectively assigned to them in Section 2 of the Medicinal and Toilet Preparations (Excise Duties) Actr1955 (16 of 1955). " To be immediately noted that in Astra Pharmaceuticals Ltd.'s case this Court was considering the phrase "Patent or proprietary medicines". In our case and the other cases earlier dealt with by the Tribunal the phrase under consideration is "brand name or a trade name". The subject matter of Tariff It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy) Member (T) DIFFERENCE OF OPINION Whether the appeals of M/s. Jagat Texturising and one other in Appeal No. E/941 and E/942/05 are to be allowed with consequential relief to the appellants as held by Member (Judicial) or rejected as held by Member (Technical). In view of the above difference of opinion, Registry is directed to place the paper before Hon'ble President for referring the matter to Third Member. Sd/- (B.S.V. Murthy) Member (T) Dated 24-6-2008 Sd/- (Archana Wadhwa) Member (J) Dated 24-6-2008 12. [Per : K.K. Agarwal, Member (T)]. - Heard both sides. 13. Ld. advocate for the appellants submitted that though he is not contesting the demand of duty on M/s. Aakash Filaments as held by Member (Technical) following the Supreme Court decision in the case of Grasim Industries (cited supra) on merits, he is contesting demand in the case of M/s. Modipon Fiber Company on the ground that it is factually not correct that the brand name of M/s. Modipon was being affixed on the paper tubes of texturised yarn manufactured and cleared by the M/s. Jagat Texturising for M/s. Modipon as has been observed by Member (Technical). He submits that these observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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