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TMI Blog2013 (8) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant’s claim for SSI benefit under Notification No.175/86-CE and Notification No.1/93-CE was hit by para (7) and para (4) respectively of the notifications - Each of these barred SSI exemption 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 was not eligible for grant of exemption under this Notification. Assignment of Brand Name - Whether the brand name was assigned to the appellant by its owner to be used in India - Held that:- Nothing contained in the trade mark agreement could be taken into account while deciding - The mere right of the appellant to use the brand name of the foreign company pursuant to an agreement between the two ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence the goods were not hit by paragraph 7/4 of the two notifications. 2. Before the adjudicating authority, the appellant pleaded that they were not paying any royalty to the brand name owner and were the sole user of the brand name in India. On this basis, it was argued that the brand name Honey Cat should be considered as their own brand name. The adjudicating authority held, on the basis of statements of witnesses, that the brand name was affixed not on the goods but on the containers thereof and therefore the assessee s claim for SSI benefit under Notification No.175/86-CE/No.1/93-CE ibid was not hit by paragraph 7/4 thereof. In the result, the demand of duty came to be dropped. 3. The order-in-original was reviewed in the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bespask vs. Commissioner [2005 (179) E.L.T. 453 (Tri.-Mum.)]. (iii) In any case, the brand name was affixed only on the packages and cannot be said to have been affixed on the goods and consequently the SSI benefit cannot be denied. Reliance placed on Climax Pipes Pvt. Ltd. vs. Commissioner: 2002 (146) E.L.T. 637 (Tri.-Kolkata), and Commissioner vs. S.P. Tools Pvt. Ltd.: 2005 (183) E.L.T. 323 (Tri.-Del.). (iv) On the question whether SSI exemption under Notification No.175/86-CE or Notification No.1/93-CE was admissible to specified goods cleared under the brand name of a foreign manufacturer, conflicting views were taken by different Benches of this Tribunal during the period of dispute and this conflict came to be settled only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the goods and the foreign manufacturer (brand name owner), thereby attracting the mischief of para 7/4 of the Notification. Namtech Systems Ltd. vs. CCE, New Delhi: 2000 (115) E.L.T. 238 (Tri.-LB), Commissioner Vs. Rukmani Packwell Traders: 2004 (165) E.L.T. 481 (S.C.) and Unison Electronics Pvt. Ltd. vs. Commissioner: 2009 (235) E.L.T. 206 (S.C.) relied upon. (iv) The appellant at any earlier stage did not claim the benefit of the proviso to para (7) of Notification No.175/86-CE. Even otherwise, they could not have claimed that benefit as Chapter X procedure was not followed. (v) The plea of limitation is also raised for the first time before this Tribunal and hence not liable to be entertained. 6. We have carefully perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umatic Co. Ltd., in his statement, admitted having received 32 diesel exhaust purifiers bearing the brand name HONEYCAT during the period from December 1992 to October 1993 from the assessee, and this evidence was not rebutted by the latter. It is also not in dispute that the brand name belonged to the foreign company viz., M/s. Johnson Matthey U.K. To the buyers of the goods, there was a connection, in the course of trade, between the goods and the brand name owner. Therefore, the appellant s claim for SSI benefit under Notification No.175/86-CE and Notification No.1/93-CE is hit by para (7) and para (4) respectively of the notifications. Each of these barred SSI exemption to the specified goods where a manufacturer affixes the specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h clearances were made without payment of duty. Eventually, this Tribunal rejected the assessee s argument that as the brand name was affixed on the container and not on the cylindrical blocks, the benefit of the Notification was not liable to be denied. The decision is squarely applicable to the instant case. The cases of Climax Pipes Pvt. Ltd. (supra) and S.P. Tools Pvt. Ltd. (supra) referred to by the counsel for the appellant are factually distinguishable. As rightly submitted by Superintendent (AR), the appellant never claimed the benefit of the proviso to para (7) of Notification No.175-86-CE and, even otherwise, could not have claimed this benefit inasmuch as Chapter X procedure has not been shown to have been followed. 6.3 Again, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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