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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 ..... aring the brand name of "Elac Excel" and "Elacvarmxpress' etc. as the said goods bears the brand name "Elac" which is similar or akin to brand name of "Elac" which is registered by another company viz. M/s.K.N. Industries. As per para-4 of the notification, the exemption shall not apply to the goods bearing the brand name of other person. The Commissioner of Central Excise in the impugned order denied the SSI limit of Rs. 1.5 croreson the goods cleared by appellant-company in the brand names of 'Elac Excel', 'Elacvarmxpress', ' Elac Excel Fiesta' and 'ElacVarm Slim'. and confirmed the demand of Excise Duty of Rs. 83,42,016/- under proviso to Section 11A (1) of the Central Excise Act along with interest and also imposed equivalent penalty under Section 11AC. He also imposed penalty of Rs. 10 lakhs under Rule 26 of the Central Excise Rules 2002 on Shri K.S. Ganesh, Director of appellant-company. Hence the present appeals. 3. Heard both sides. Ld. Advocate Shri S. Murugappan appearing for the appellant submitted a written synopsis and reiterated the same. He submits that both K.N. Industries and the appellants are manufacturing the items and are av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e' whereas as per the SSI notification the exemption benefit is not available on goods bearing the brand name of others and they have not affixed any brand name of other person. There is difference between the words "similar" and "same". In support of this, he relied the Hon'ble High Court decision in the case of UOI Vs Pillaiyar Soda Factory - 1992 (57) ELT 261 (Mad.). He further submits that in their case, they have used their registered name of M/s.Elac Marketing Pvt. Ltd. on the goods and use of the word "Elac Excel" is part of the company's name Elac itself. The water heaters manufactured by them are (ABS) plastic bodies whereas the goods manufactured and cleared by K.N. Industries are made of metal body and hence both the product category are distinct and different. He also submits that the word used "Elac Excel", "Elac varmxpress", "Elac Excel Fiesta" and 'Elac Varm Slim' are names of different models of "Elac Excel" itself and not the brand name. He drew our attention to Registration Manual of Bureau of Indian Standards (BIS) and Bureau of Energy Efficiency (BEE) at pages 52 to 55. 5. Regarding allegation of common advertisement expenses, he submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of Shri K.S. Ganesh at page 135 Question No.8 and where he stated that Elac is a registered brand and they have only applied for registration for Elac Excel later on. Even their packing cartons bears the name and style of Elac. Therefore Elac Excel is only a model name of Elac and not a separate name. He also submitted that advertisement were made only in the name of Elac Water Heaters. He submits in common trade parlance it is sold and bought as in the name of Elac only. He relied on following case laws. :- (1) CCE Chandigarh Vs Bhalla Enterprises-2004 (173) ELT 225 (SC) (2) CCE Visakhapatnam Vs Mehta & Co. -2011 (264) ELT 481 (SC) (3) CCE Trichy Vs Rukmani Pakkwell Traders-2004 (165) ELT 481 (SC) (4) CCE Chandigarh Vs Mahaan Dairies-2004 (166) ELT 23 (SC) (5) Priya Bakers (P) Ltd.-2012 (282) ELT 190 (Chhattisgarh) (6) CCE Trichy Vs Grasim Industries Ltd.-2005 (183) ELT 123 (SC) (7) CCE Madras Vs Rathna Industrials-2006 (198) ELT 101 (Tri-Chennai) (8) CCE Bhopal Vs Quantum Instruments & Electronics-2014 (302) ELT 113 (Tri.-Del.) 7. We have carefully considered the submissions and examined the records. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steam generating, cooking, drying ventilating, in the name of Elac Marketing (P) Limited, at 328A, Arcot Road, Chennai 600 024, Tamil Nadu State, Indian National, who claims to be the proprietor thereof and by whom the trademark is used since 29.10.2009 in respect of the above said goods. It is evident from the above that they have applied for registration of their brand "Elac Excel" and the said Brand name is being issued since 29.10.2009. 9. In this regard, we rely the Hon'ble Madras High Court Judgement in the case of UOI Vs Pillayar Soda Factory where the Hon'ble High Court discussed the distinction between the words similar and same. The relevant para-13 is reproduced as under :- 13. A bare reading of the explanation unmistakably shows that the expression 'common trade mark aerated waters' implies aerated waters which are sold under the same trade mark or under the same brand name in more than one factory, whether belonging to one or more manufacturers. Thus, the sale must be with the 'same' trade mark or brand name in order to attract the categorisation of 'common trade mark aerated waters', for the purpose of the notification. Can the use of a 'similar' or 'deceptively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext of the intention of the authorities issuing the notification. The authorities intended to deny the benefit of individual exemptions only where one or more manufacturers sell the product under the 'same' trade mark or brand name. It is a fundamental rule for the construction of statutes, that where the language is plain and clear, the words must be held to have been used, according to the plain and ordinary meaning of the term to determine their connotation or meaning. Therefore, using the well settled rule of interpretation, the conclusion is irresistible that the Collector fell in error in construing 'same' as 'similar' or even 'deceptively similar' to deny the benefit of individual exemption to the writ petitioners under the notification. The ratio of the above judgement is squarely applicable to the present case wherein the Hon'ble High Court has clearly held that concept of 'similar' etc. cannot be used to interpret the meaning of the word occurring in the notification by taking recourse to modes other than plain language. We find that para-4 of the notification stipulates that notification shall not apply to the goods bearing a brand name or trade name of another p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In A.J. Bantex case the Tribunal clearly held that the company registered under the Companys Act has every right to use the company's name on its product. The Tribunal in the above case relied Tribunal's decision in CCE Vs Varco Sara India (P) Ltd. (supra). The Tribunal also referred to apex Court's decision Commissioner Vs Rukmani Pakkwell Traders (supra) in A.J. Bantex case. The ratio of the above decisions is squarely applicable to the present case as there is no dispute on the fact that appellant is a private limited company registered under the Companies Act. Therefore, they have rightly used their name of company in their own brand name 'Elac Excel'. Revenue's contention pertaining to another brand name is not justified as it is not a case that appellant manufactured the goods on behalf of other person by using their brand name. As both the companies are independent and brand name of 'Elac' registered name of K.N.Industries is distinctly different and the Appellant's brand name 'Elac Excel'. As already discussed above, the SCN and in the impugned order itself have clearly brought out that appellant have not used the 'same' brand name of K.N.Industries but it is simil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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