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TMI Blog2014 (12) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... E/518/1992-DB - Final Order No. 20910 - 20911/2014 - Dated:- 27-5-2014 - SHRI B.S.V.MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr.T.V. Ajayan and Mr. Anirudh R.J. Nayak, Advocates For the Respondent : Mr. R. Gurunathan, Addl. Commissioner (AR) JUDGEMENT Per : B.S.V.MURTHY; The issue involved in both these appeals is common and therefore both are taken up together and a common order is being passed. The matter was heard in great detail and it was submitted by the learned counsel that the appeals had a long history and there was substantial delay because the file was transferred from Delhi to Chennai and thereafter Chennai to Bangalore and somewhere the file was lost and was reconstructed. He submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the benefit. However, the question that is to be examined is whether the usage of waters as discussed above would amount to use of brand name. In our opinion, it cannot be asserted conclusively in this manner. Idea behind putting the restriction of using the brand name is that when a brand name is looked at, the association with the brand name owner should come into mind. In the absence of USA and waters being not exactly an unique name as such, it would be difficult to come to a definite conclusion that a purchaser would associate the product with waters USA when he purchases from the appellant. No evidence has been gathered to support the case of the Revenue from any of the customers or from the market. Therefore on this groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sociates is part of M/s. Millipore Corporation, USA. No evidence was produced to prove this finding. In the absence of such an allegation in the show-cause notice and a mere assertion by lower authorities that this is so and non-acceptance of this observation by the lower authorities by the appellant, forces us to accept the submission that the lower authorities have traveled beyond the show-cause notice. The learned counsel cited several decisions to submit that no new case can be made out in favour of the Department when such a point has not been taken up in show-cause notice. The decisions are Cora Ltd.: 1997 (94) E.L.T. 566 (Tri.); Reckitt Coleman of India Ltd.: 1996 (88) E.L.T. 641 (SC) and Commissioner vs. Champdany Industries Ltd.: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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