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TMI Blog2011 (8) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer, whereas "Brand name" is a name or trade mark either unregistered or registered under the Act. - it is clear that what was being used by the respondent under the expression "Kalvert" was a "Brand name" and not a "House mark" as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal - Decided against the assessee - 4500-4502 OF 2003 - - - Dated:- 9-8-2011 - Dr. MUKUNDAKAM SHARMA, ANIL R. DAVE, JJ. JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. These appeals arise out of Judgment and Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi Bench [for short "CEGAT"] on 02.08.2002 whereby the Tribunal had allowed the appeals filed by the respondents holding that the respondents were not guilty of clandestine removal of excisable goods and also that the goods of the respondent no. 1 were not excisable inasmuch as they were not packed in containers under a brand name. 2. Before entering into rival contentions of the parties, it would be necessary although in a nutshell to look into the facts of the case leading to filing of the present appeals. 3. The respondent No. 1, M/s. Kalvert Foods India Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e selling agent of the respondent-company, M/s. Sai Krupa, a partnership firm of the Managing Director of the respondent No. 1; and at the premises of sole proprietor of RTC and records pertaining to the sale and purchase of the goods lying in the offices of these companies, were seized. It revealed to the searching officers that, in fact, the respondent-company had cleared jams, syrup, sauces, pickles, etc., from the factory premises to the above said selling agents without payment of duty, but had shown those clearances as that of the sugar, in the invoices and had also cleared the branded goods to the dealers/traders. 9. After completion of the entire process a show cause notice was issued to the Company and its Director. Such notices were also issued to the proprietor of M/s. RTC, its partner and M/s. Sai Krupa Corporation. Through notices issued, duty demand was raised from the company and penalty was also proposed to be imposed on the company. Reply was filed by the respondents to the aforesaid show cause notices. 10. The adjudicating authority, namely, the Commissioner of Central Excise, Mumbai, passed an order dated 27.02.2002, holding that the respondent no. 1 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r put up in unit containers and bearing a brand name" 15. Chapter 20 of the Central Excise Tariff of India 1998-99 (incorporating rates of Central Excise Service Tax as in operation on 2nd June, 1998) prescribes 8% excise duty for the goods mentioned under sub heading 2001.10. Description of goods mentioned in sub-heading 2001.10 is as under: "preparations of vegetables, fruit, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter put up in unit containers and bearing a brand name". What is brand name is also explained in the notes included in Chapter 20 to the following effect: ""brand name" means a brand name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person". 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and relied upon. 19. We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides, the Managing Director of the Company on his own volition deposited the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstance of the present case, the aforesaid statement of the counsel for the respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress. 20. During the course of arguments our attention was also drawn to the statement of Managing Director of the Company where he had admitted the fact of clandestine clearance of excisable goods and therefore has voluntarily come forward to sort out the issue and to pay the Central Excise duty liability and that he has paid Central Excise duty voluntarily under TR6 Challans totaling to Rs. 11,00,000/- on various dates. Similarly statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early stated that her company bought large quantities of excisable goods from the respondent company and in turn sold them to its distributors. She also confirmed the documents seized from her residence which included correspondence with their customers regarding promotion of the "Kalvert brand" products. 24. The Tribunal also failed to consider and discuss the specific allegation of the appellant that respondent no. 1 maintained two sets of computerized commercial invoices, one for excisable products like jams, sauce, syrup etc and the other for non-excisable goods such as salt, sugar and pepper which were marked as L series. It has also come on evidence that L series sales for the period 1996-1999 was only made to RTC in huge quantities and that in the guise of selling salt, sugar and pepper, the respondent No. 1 was in fact selling excisable goods to RTC. These facts have been found and taken note of by the adjudicating authority but the same were totally ignored by the Tribunal. 25. Due to the aforesaid reasons and on the basis of the materials available on record it is clear that the Company was guilty of clandestine removal of excisable goods as non-excisable goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 (S.C.). While placing reliance on the said Judgment, the counsel appearing for the respondents submitted that what is a `Brand name' is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name' and then submitted that the phrase "New Improved Quick Frozen French Fries" was not held to be a brand name, and therefore, according to him the brand name of the respondent company "Kalvert" being a "House Name" could not be termed as "Brand Name". 32. In our considered opinion, the aforesaid brand name "New Improved Quick Frozen French Fries" is a descriptive word and the same could not have been termed and coined either as a "house name" or a "brand name" under any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope of "Brand name" and distinction between `House mark' and "Product mark/Brand name" has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary that "Brand name" should be compulsorily registered. A person can carry on his trade by using a "Brand name" which is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name. 35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e. "House mark" and "Brand name" and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning. 36. In the book of "Law of Trade Marks" by K.C. Kailasam and Ramu Vedaraman the distinction between `Product mark' and `House mark' has been beautifully delineated, which is as under: "It is possible that the proprietor may use several trade marks in respect of his goods (known as Product mark), besides using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark). This practice is more predominant in the pharmaceutical trade. Though both are trad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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