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TMI Blog2008 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... . Remi Udyog is the owner of registered brand name 'REMI'. The symbol/logo/trade mark of trifid (blades of fan in motion) was affixed on the fans manufactured by the above companies. The Director of M/s. Remi Sales and Engg. Ltd. which is engaged in the trading of fans manufactured by the above four companies stated that the fans manufactured by the above companies are known as REMI fans in common trade parlance. Statement of Shri Abhay Manohar Nimkar, Clerk of all four manufacturing units was recorded on 31-3-1998, wherein he stated that the trifid symbol, as shown, above was affixed on the cartons of fans and mixies are packed, belongs to the above four companies as well as to M/s. Remi Amupam and M/s. Remiswati and that symbol is also affixed on the fans manufactured by the above two companies. Shri Nirmal Murarka, Director of M/s. REUL and Commercial Manager of M/s. Remi Udyog stated that trifid logo represents fan blades, and that the logo being used on their fans, packing boxes and cello tapes. He also stated that M/s. REUL was using their own brand name "Cyclone" along with the trifid symbol/logo. Shri Digambar Murlidhar Cadre, Technical Director of M/s. RMEL stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity of that person." The entire plank of the Revenue's case rests on the charge that the trifid symbol is owned and used by M/s. Remi Udyog. However, there is no evidence to support this charge. No Director of Remi Udyog has been cross-examined. The Commercial Manager of Remi Udyog has not stated that the logo in question belongs to M/s. Remi Udyog. The use of logo by Remi Udyog prior to its use by M/s. RMEL and M/s. REUL is relied upon by the ld. SDR to support the department's claim that logo belongs to Remi Udyog. However, this is not sufficient to hold that the logo belongs to M/s. Remi Udyog. The logo appears to be a common design or symbol which is not an exclusive trade mark owned by one company and therefore can be used by any manufacturer. In this connection we place reliance on CBEC Circular No. 52/52/94 dtd. 1-9-1994, the relevant extracts of which are reproduced below :- "Perusal of the said (explanation IX to the Notification No. 1/93) will show that, to satisfy the requirement of brand name or trade mark, it is necessary that brand name or trade name must indicate a connection in course of trade between such specified goods and some person using such name or mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant time dis-entitled a manufacturer affixing specific goods with the brand name/trade name whether registered or not of an other person who is not eligible to the SSI unit, from the benefit under the Notification.) The Apex Court held that the first requirement for non-availability of the benefit of exemption under the Notification viz, that brand name or trade name must be of another person, was missing, as the said hexagonal design was not at all a brand name or trade name of a marketing company, and therefore, benefit of exemption was admissible to the appellants. The Apex Court decisions relied upon by the ld. SDR before us have been considered by the Apex Court in its judgment supra, the relevant paras of which are reproduced below :- "6. The CEGAT in its order observed that the hexagonal design, i.e the monogram/logo must be held within the ambit of Explanation VIII of Paragraph 7 of the notification as it belonged to the Marketing Company and was used by the appellant on the goods manufactured by it. While coming to this conclusion the CEGAT rejected the contention of the appellant that the conclusion that the alleged monogram was a brand name of the Marketing Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or in vented 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." 8. Before we deal with Paragraph 7 read with Explanation VIII of the notification, we may reiterate that in the show cause notice issued by the Commissioner of Central Excise, it was alleged that the hexagonal shape/design printed on the packings of the goods of the appellant was a brand name/trade name of the Marketing Company by placing reliance on the following (a) Visiting Card of Shri Nilesh Doshi and Shri Paresh Shukla of the Marketing Company. (b) One drawing prepared by LMS Industrial Group. 9. We now turn to paragraph 7 of the notification. From a bare reading of the same, we cannot doubt that the exemption notification shall not apply if a manufacturer affixes the specified goods with a brand name or trade name of another person who is not eligible for grant of exemption under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees' goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name." As noted hereinabove, we have already indicated that the brand name used on, the corrugated boxes would not show any intention of indicating a connection between the goods manufactured by the appellant and the Marketing Company. Again, in Commissioner of Central Excise v. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.) = (2005) 4 SCC 194] this court, while considering similar provisions of the Notification No. 5/98-C.E., observed in paragraphs 15 and 16 as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company." In Tarai Foods Ltd. v. Commissioner of Central Excise [2006 (198) E.L.T. 323], this court, while considering a similar definition of the expression "brand name", in paragraphs 7 and 9, held as under :- "7. The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacturer which when used on a particular product would establish a connection between the product and the manufacturer." "9. Furthermore the definition of the words 'brand name' shows that it has to be a name or a mark or a monogram etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identity of a person itself. It has to be some thing else which is appended to the product and which establishes the link." In Commissioner of Central Excise v. Superex Industries [2004 (174) E.L.T. 4], in the context of the Notification No. 175/86-C.E., this court in paragraph 3 held as under :- "3. CEGAT has held that the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (Explanation IX to the Notification No. 1/93-C.E.) will show that to satisfy the requirement of brand name or trade name it is necessary that the trade name must 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 or identity of that person. Unless connection between the trade name and the person with whom that trade name is to be identified can be established, the requirement of brand name or trade name as provided for in the said notification will not be satisfied. It is an admitted case of the department that in respect of locks, the units are making locks bearing the same name or mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not be long to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th/11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of Explanation IX in the said notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t point of difference in clause (a) is concerned, registration of the brand name is not a prerequisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration. The learned Senior Counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy v. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned Senior Counsel for the respondent in Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies [2004 (166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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