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TMI Blog2016 (3) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it cannot be construed that they have affixed brand name of other person. The brand name of ‘Elac Excel’ used by the appellant on Automatic Storage Water Heaters is not a brand name / trade name of any other person and not hit by para (4) of SSI Notification and they are eligible for the SSI exemption limit of ₹ 1.5 crores under the said notification. - Appeal Nos. E/41183/2014 & E/41184/2014 - Final Order No.40455-40456/2016 - Dated:- 3-3-2016 - SHRI R. PERIASAMI, TECHNICAL MEMBER AND SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri S. Murugappan, Advocate Fir the Respondent : Shri Veerabadra Reddy JC(AR) ORDER PER R. PERIASAMI Since the issue involved in both the appeals is common and arising out of same impugned order dated 26.2.2014, both the appeals are taken up together for disposal. 2. The brief facts of the case are that appellant M/s.Elac Marketing Pvt. Ltd. is registered with Central Excise for manufacture of Instant Water Heaters and Automatic Storage Water Heaters and discharging Central Excise duty after crossing the SSI exemption limit of ₹ 1.5 crores as per Notification No.8/2003 dt.1.3.2003. SCN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant as well as to M/s.K.N. Industries on 17.4.2012 which is annexed to pages 121, 122 of the paper book. They have rightly acknowledged the summons by proprietrix and requested time for filing appeal. He submits that subsequently Shri K.S.Ganesh, Director visited the Central Excise office and statements were recorded and after the verification, the officer satisfied and the records were returned. He submits that there is no copy of the statement given to them. They were also under the bonafide belief that Elac Excel is not the brand of M/s. K.I. Industries as they have already applied for registration of their trade mark Elac Excel . There is no suppression as the department is well aware of the investigation from 17.4.2012 whereas SCN was issued on 11.7.2013 and hence hit by limitation. He relied the following case laws :- (1) Orissa Bridge Construction Corporation Ltd. Vs CCE -Bhubaneswar - 2011 (264) ELT 14 (SC) (2) Uniworth Textiles Ltd. Vs CCE Raipur-2013-TIOL-13-SC-CUS (3) Tamil Nadu Housing Board Vs CCE Madras-1994 (74) ELT 9 (SC) 4. On the merits of the case, he submits that the brand name belonging to K.N. Industries is Elac whereas the name u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their own brand Elac Excel and pleaded to set aside the impugned order and also submits that Shri K.S. Ganesh, Director, is not liable for any penalty. 6. On the other hand, Ld. A.R for the Revenue reiterated the SCN and the findings of the adjudication order. He submits that appellants have moved into the premises of K.N.Industries in 2003. He submits that SSI Notification 8/2003 para-4 read with Explanation to the notification which is clearly applicable to this case as the name of Elac is owned and registered by K.N Industries and the appellants have used the brand name of Elac belonging to another person. 6.1 On limitation, he submits that demand is not hit by limitation as summons were given to both Elac Marketing Pvt. Ltd. and K.N. Industries and there is no evidence of recording of any statement or verification of records and returning of records as contended by the counsel. Therefore, the transaction came to light only from the date of visit of officers to the premises of appellant on 2.11.2012 which is correctly recorded in the order. He further submits that the goods were manufactured and cleared and sold only in the name of 'Elac' water heaters. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Plastic) body and the appellants are importing the parts and manufacturing the finished goods in the said premises and clearing in their name Elac Excel whereas the goods manufactured by K.N. Industries for water heaters on metal body (powder coated stainless steel) and cleared under the registered brand name of Elac. Therefore it is evident that the products cleared by appellant's brand name is Elac Excel which is made of ABS body (plastic body) and the product manufactured and sold by K.N. Industries is water heaters Stainless Steel body under their brand name of Elac and both the goods are not one and the same. On perusal of the catalogues product literature, we find that appellants have used only the name Elac Excel. 8. We also find that appellants have filed application dated 16.8.12 and 21.8.12 before the Trade Mark Authority, Chennai under the Trade Marks Act for registering their brand name and the copy is reproduced as under :- FORMTM 1 Attorney Code: 5926 THE TRADE MARKS ACT 1999. Application for registration of a Trademark for goods and services (other than a collective mark or a certification trade mark) in the Register. Section 18(1} R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larging or restricting the scope of the notification. Fiscal laws, it is trite, must be strictly construed. The notification issued under the fiscal laws have equally to be strictly construed. The words used in the notification must be understood according to their plain phraseology. Nothing should be presumed. Nothing should be implied. The true test must always be the language used. The authorities used the expression same in the Explanation to explain as to when manufacture can be said to be under a common trade mark . The authorities did not use the word either similar or identical . The word same has an absolutely different meaning than the word similar or identical . For example, if it were said that A and B live in the same house , it would imply that they were living in one house, while if it were said that -A and B live in similar houses or in identical houses, obviously, the implication would be that A and B live separately . Therefore, the word same cannot be construed to be synonymous with similar or identical , or even deceptively similar and deceptively identical. Since the language used in the notification is clear, it is not permissible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w on this aspect. 5. However the respondents also sell pickle with the name Mahaan written in exactly the same style as a registered trade mark of other Company. The question would be whether by adding the words Taste Maker the Respondents could get the benefit of the Notification. The Hon ble Supreme Court in the above judgement has clearly held that when the appellant is using the name of their company should not disentitle them from claiming the benefit which was accepted by the adjudicating authority. Whereas in the present case, the appellants have clearly used their own company name i.e. Elac representing Elac Marketing Pvt. Ltd. Further in the case of AGI Switches (P) Ltd.Vs CCE New Delhi (supra) the Tribunal clearly held that the brand AGI switches and AGI LT Control Switches are two different and distinct names and also held that it cannot be compared with use of other's brand name. The above Tribunal s judgment was upheld by the Hon ble Supreme Court as reported in CCE Vs AGI Switches Pvt. Ltd.(supra) where the Hon ble apex court by relying their own judgment in the case of CCE Vs Bhella Enterprises - 2004 (173) ELT 225, held thatthere is no reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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