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TMI Blog2014 (6) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... her by JPPL and thereby availing wrong benefit of concessional rate of Excise duty under Notification No. 1/93-C.E. Accordingly, the officers of DG (Anti-Evasion) inspected the premises of one Jain Agency on 28-1-1999 dealing in PVC pipes and fittings bearing brand name "JAIN PIPE" and also recorded statement of Mr. Ashok Jain, incharge of Jain Agency under Section 14 of the Central Excise Act, 1944. Mr. Ashok Jain stated that the Jain Agency has been dealing in "Jain Pipes" since 1981 and till 1987, they had purchased pipes from the Jalgaon unit. After the commencement of manufacturing of PVC pipes at Sendhwa unit, they started purchasing pipes from the Indore depot. Delivery challan and bills issued either by JPPL or Jain Plastic and Chemical Ltd. (JPCL in short) having its work at Sendhwa, accompanied the goods. It was further stated that Jain Agencies were dealing in "Jain pipes" and branded PVC pipes. It was further stated that price of the pipes of both the companies were same and pipes of both the units were kept together as it was both bear the same brand name - "JAIN PIPE". He further "stated, on being subsequently asked, that they were able to supply pipes of a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., M/s. Jain Rahen Biotech Ltd., M/s. Jain Irrigation System Ltd., etc. It was also noticed that subsequently, JPCL, JKFL and JRBL were amalgamated with JISL. Scrutiny of invoice and delivery challan of both the companies, JPPL and JPCL revealed that both were having a brand name and house symbol of the Jain group of companies on the delivery challan and invoices. It was further revealed that the three companies, JPPL, JPCL and JISL has engaged one M/s. Swift Advertisement Pvt. Ltd. for issuing common advertisement on behalf of all the three companies and the three companies shared the advertisement expenditure proportionately. 2.3 The statement of Shri Sanjay Bhandari, Director of M/s. JPPL was recorded on 7-4-1999, in which he stated that the goods of JPPL, JPCL and JISL were received from the factory in a common godown, but separate records were maintained. He further stated that the pipes and fittings sold in the market bore (a) name of the company, which had manufactured, (b) ISI marks, (c) licence number of the company, (d) batch no., and (e) JPPL - JAIN PIPE, or JPCL - JAIN PIPE, or JISL - JAIN PIPE, which indicate the distinct manufacturer of the pipe. He admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds "JAIN PIPE" were used by them is not a brand name of another person, but it was their own brand name. "JAIN PIPE" cannot be termed as the brand name. Jain is a group and surname of many persons. The Directors of the companies are Jain and hence, they used the words "JAIN PIPE". They also embossed their companies name on the pipe to distinguish that the same were manufactured by the particular manufacturer company/unit. Hence, "JAIN PIPE" cannot be treated as brand name of JPCL or JISL. The logo of Jain group is a house mark and distinctly different from the trade mark. Reliance was placed on the ruling of the Apex Court in the case of Astra Pharmaceuticals Pvt. Ltd. v. CCE, Chandigarh - 1995 (75) E.L.T. 214 (S.C.). On. the issue of suppression of facts, it was stated that they are registered with Central Excise department and paying concessional rate of duty also. During the disputed period, they had submitted copy of invoice to the departmental authority regularly. Their invoice always used Jain Pipe on the face of the invoice. Therefore, it cannot be said that they have kept back any information from the department. Therefore, as per the respondents, the demand notice is hit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Tamil Nadu Housing Board v. Collector - 1994 (74) E.L.T. 9 (S.C.) (ii) Pushpam Pharmaceuticals Co. v. Collector - 1995 (78) E.L.T. 401 (S.C.) (iii) Cosmic Dye Chemical v. CCE - 1995 (75) E.L.T. 721 (S.C.). Further, ruling relied upon by the adjudicating authority in the case of Theo Pharma v. CCE - 1992 (60) E.L.T. 395 (Tri.) was distinguishable as in that case the manufacturer was using on the label of medicines manufactured by it, its own mark as well the mark of the buyer and the entire goods were sold by the manufacturer to the same buyer, who was marketing them. Such are not the facts obtaining in their case. The learned Commissioner (Appeals) set aside the Order-in-Original and allowed the appeal in favour of the respondents with consequential relief, recording the following findings :- "6. The appeals are being taken up for final disposal after dispensing with the pre-deposit of penalty. I find that the issue involved, in short, is the denial of benefit of SSI exemption to the appellant No. 1 for non-satisfaction of the condition No. 4 in Notification No. 1/93-C.E., dated 28-2-1993. On a careful consideration of the matter, I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, that is to say 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 indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. As the said definition is very vide, even name of a person who markets the goods, if used on product, may attract provisions as such name or mark indicates connection with the person using it. In view of the admitted fact that mono 'JAIN PIPE' was embossed on the goods and that such mono was also printed on the commercial and Excise invoices, hence once the brand name of another appeared on the invoices of the goods, then such use of brand name definitely indicates the connection between the said goods and other person using the said brand name. The finding of the Commissioner (Appeals) that "Jain" is a common word cannot be construed as brand name is incorrect. Reliance is placed on the ruling of the Apex Court in the case of Bombay Oil Industries Ltd. v. Collector - 1997 (91) E.L.T. 538 (S.C.) and Hemraj Gordh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Del.), wherein the assessee had affixed a logo 'Minimax' which was used and belonged to one M/s. Minimax Engineering Industries (MEI) and this fact was stated by the partner of Minimax Industries and confirmed by the proprietor of MEI. In the circumstances, finding was recorded that as per findings on record, it does not reveal that the Revenue has been able to establish that the logo Minimax had acquired trade name or brand of M/s. MEI in relation to the machinery manufactured by them. Accordingly, SSI exemption was held to be admissible under Notification No. 1/93 read with 8/93. The said ruling was challenged by the Revenue before the Hon'ble Delhi High Court and the Hon'ble High Court observing that the partnership firm and the proprietorship firm both was run by family members and both have been using the trade mark for last several years, though, the use by MEI may be prior in point of time, MEI has not got brand name/logo 'Minimax' registered either under the Registration Act or under the Trade Marks Act or any other Act. 'Minimax' has not acquired any such reputation that it can be associated with "MEI". "Minimax" belongs to both the entities namely partnership firm as wel ..... 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