9911796707
TMI Blog2011 (1) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... a sole propriety concern of Mohd. Yamin is situated at 12, Krishna Kunj Market, Laxmi Nagar, Delhi. The officers on enquiries found that in the machines manufactured by the partnership firm, the name 'MINIMAX' is used along with the full name and address of the partnership firm i.e. M/s. Minimax Industries, 93, Patparganj Industrial Area, Delhi-110092. Statement of respondent No. 2 i.e. Sh. Liyakat Ali partner was recorded. Thereafter show-cause notice was issued to the partnership firm as to why the status of Small Scale Industries should not be withdrawn/cancelled and exemption be denied on the ground that the said partnership firm has violated the provisions of condition No. 4 of the Notification No. 1/93-C.E. as well as Notification No. 8/99-C.E. This condition No. 4 stipulates that the exemption contained in the Notification would not be applied to the specified goods bearing the brand name or trade name (whether registered or not) of another person. Explanation-IX of the said Notification also defines the terms "Brand name" or "Trade name" to which we shall revert at the appropriate stage. 3. The partnership firm replied to the said show cause notice dated 5th July, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise (A) vide orders dated 13th July, 2004. However, on further appeal preferred before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as the 'CESTAT'), the partnership firm emerged victorious as by the impugned orders dated 12th February, 2010 [2010 (261) E.L.T. 535 (Tri. - Del.)], the CESTAT has allowed the appeal of the partnership firm/respondent. 5. Perusal of the order of the CESTAT would reveal that the CESTAT took into consideration the aforesaid condition No. 4 and the definition of 'brand name' or 'trade name' appearing in Explanation-IX thereof. The CESTAT also took note of some judgments of its different Benches as well as the Supreme Court, Circulars of the Central Excise Board as well as opinion of the Ministry of Law. After taking note of all these material, the Tribunal opined that mere use of the name or logo used by others which has not acquired the status of 'brand name' or 'trade name' within the meaning of said expression under the aforesaid Notification would not amount to violation of condition No. 4 of the said Notification. In the opinion of the Tribunal, in order to acquire the status of 'brand name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny indication of the identity of itself. The central idea contained in the aforesaid definition is that the mark is used with the purpose to show connection of the said goods with some person who is using the name or mark. Therefore, in order to qualify as 'brand name' or 'trade name' it has to be established that such a mark, symbol, design or name etc. has acquired the reputation of the nature that one is able to associate the said mark etc. with the manufacturer. We are supported in this view by series of judgments of the Supreme Court. 8. In Tarai Food Ltd. v. CCE, (2007) 12 SCC 721 = 2006 (198) E.L.T. 323 (S.C.) = 2007 (8) S.T.R. 442 (S.C.), the expression "brand name" was explained in the following terms :- "7. The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacture which when used on a particular product would establish a connection between the product and the manufacturer. xx x x x x 9. Furthermore the definition of the words 'brand name' shows that it has to be a name or a mark or a monogram, etc. which is used in relation to a particular product and which establishes a connection between the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, in the case of Royal Hatcheries Pvt. Ltd. v. State of A.P. - 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company." 10. Likewise, in CCE v. Bhalla Enterprises, (2005) 8 SCC 308 = 2004 (173) E.L.T. 225 (S.C.) the Supreme Court was eloquent in observing that as per the aforesaid Notification, the assessee will be debarred only if it uses on the goods, in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees' goods and such other person or uses the name in such a manner that it would indicate such connection. 11. All these judgments were taken not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name." 13. These observations bring out two significant aspects namely :- (1) As per the Notification, the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessee's goods and such other person or uses the name in such a manner that it would indicate such connection. If there is no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. (2) The assessee would also be entitled to the benefit of exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. When we apply the aforesaid principle to the facts of this case, it is not difficult to come to the conclusion that the Tribunal has perfectly applied the aforesaid principle in its order and the same and does not call for any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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