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TMI Blog2015 (6) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 a show cause notice was issued to the respondent by the appellant/Excise Department stating that the respondent is wrongly claiming the benefit of the aforesaid Notification inasmuch as use of the brand name 'Stangen' and also the logo belonged to Dr.K.Anji Reddy, Chairman of Dr.Reddy's Laboratories (DRL). It was stated that DRL is the manufacturer of bulk drugs falling under Chapter 30 of the Central Excise Tariff Act, 1985, and the trade mark 'Stangen' and related logo are used on the printed labels foils of the P & P medicine manufactured by DRL and also appear on the classification list filed by the DRL. On this basis in the show cause notice it was mentioned that the respondent was not entitled to the benefit of concessional rate of duty under the aforesaid Notification inasmuch as para 7 of the said Notification denied exemption in those cases where the manufacturer (SSI) affixes the specified goods with a brand name or trade name, registered or not, of another person who is not eligible for grant of exemption under this Notification. Explanation VIII to the said Notification which defines brand name reads as under:- " Explanation VIII - "Brand name" o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en note of para 7 of Notification No.175/86-CE as well as definition of brand name appearing in Explanation VIII contained in the said Notification. As far as para 7 is concerned, it states that the benefit of exemption would not apply to the specified goods where a manufacturer affixes the specified goods with brand name or trade name (registered or not) of another person who is not eligible for grant of exemption under this Notification. As per this, in order to deny the exemption under this Notification, the Department has to show that on the goods which are manufactured by the manufacturer i.e. the SSI, the brand under or trade name of another person is affixed and that another person is not eligible for grant of exemption in this Notification. In other words, when that other person whose brand name or trade name is used by the SSI is not itself a SSI, then the user is not entitled to exemption under the said Notification. 6. Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that on the facts of this case the respondent would still be entitled to exemption. Her case in this behalf was that the respondent had been using the aforesaid name and logo since 1986, and the show cause notice pertained to the year 1988. On the other hand the said trade name and logo was being registered in favour of Dr. K.Angi Reddy only in the year 1989. Her submission, thus, was that in its own independent right the respondent had been using the said trade name and logo as an owner thereof and therefore, would be entitled to exemption even if the same was used by the DRL and it is a case where both the parties were using the same trade mark and logo simultaneously in there own rights. What is argued is that the respondent was not using the trade mark/logo or brand name of DRL but it was its own and therefore would not come within the mischief of para 4 of the Notification. 10. We would like to observe that if the aforesaid contention of the respondent is factually correct, viz. The respondent used the brand name as the owner thereof itself, and was not using the brand name as belonging to DRL and authorized by DRL, then the submission of Ms. Tripathi is legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion between the product and the person. To the same effect is the judgment of Supreme Court in CCE Vs. Grasim Industries ltd., (2005) 4 SCC 194 wherein this Court observed as under: "15.........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 brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words "any writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ames of the assessee "INTATEX" and "INTACO" were clearly and prominently printed. In between these two brand names, a hexagonal shape/design, which was claimed by the Department to be the brand of the Marketing Company, was also printed. In this backdrop, the question was as to whether the assessee company was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on record to show that the said hexagonal shape/design belonged to or was owned by the Marketing Company and thus they had permitted the assessee to use the same on the corrugated boxes. The Court also found that the hexagonal design/shape could not be said to be descriptive enough to serve as an indicator of nexus between the goods of the assessee and the Marketing Company. On this basis, it was concluded that the alleged monogram could not be the brand name or trade name of the Marketing Company. 15. We would also like to reproduce the following observation from Commissioner of Central Excise, Chandigarh II Vs. Bhalla Enterprises, (2005) 8 SCC 308:- "The apprehension of the assessees that they may be denied the exemption merely because some other trade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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