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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 ..... d to as M/s. REUL) both belonging to the Remi Group of companies, are engaged in the manufacture of various types of fans, such as table fans, wall fans, cabin fans etc. falling under Chapter 84 of the First Schedule to the CETA,1985, and availing benefit of SSI exemption under Notification 1/93 dt. 28-2-93, 7/97 dt. 1-3-97, 16/97 dt. 1-4-97 and 8/98 dt. 2-6-98. In addition to the above two companies, M/s. Remi Udyog and M/s. Remi International Ltd. who are part of the Remi Group of companies are also engaged in the manufacture of fans. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me or trade name (registered or not) of another person. As per the explanation in the Notification, "brand name" or "trade name" shall mean "a brand name or trade name whether registered or not, 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." 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 sym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spares Pvt. Ltd. under its own brand names/trade names viz, 'intatex' and 'Intaco' which were affixed/printed on its corrugated boxes which also contained hexagonal artistic design thereon. The above design was alleged by the excise authorities to be monogram of L.M.S. Marketing company and therefore, the manufacturer was not entitled to exemption for the reason that the goods were affixed with brand name/trade name of the marketing company, which was not eligible to the grant of exemption under the Notification (Notification 175/86 as it stood at the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. But before we take up this question, it would be appropriate at this stage to reproduce paragraph 7 and Explanation VIII of paragraph 7 of the notification which run as under:- "The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. Explanation VIII. - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered 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 packi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketing Company when the Marketing Company has itself disowned the brand name, more so, since it is unusual that the person who is owning a brand name would come forward to disown the same when such disowning would deprive the said person of a valuable asset. In Commissioner of Central Excise v. Bhalla Enterprises [2004 (173) E.L.T. 225 (S.C.) = (2005) 8 SCC 308] this Court, while considering similar provisions of a subsequent Notification No. 1/93-C.E., in paragraph 6, observed as under:- "The notification clearly indicates that the assessee will be debarred only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case we do not express any opinion on this aspect. 16. This court has, in the case of Royal Hatcheries (P) Ltd. v. State of A. P. already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or trade name of another person who is not eligible for the exemption that he becomes ineligible to avail the benefit under the notification. Use of the logo of the manufacturer by other person, whether an assignor or a third party, has no relevance for purposes of para 7. That is not the import of Explanation VIII." At this stage, the relevant extracts of the opinion of the Law Ministry, Union of India contained in paragraph 3 of the Circular No. 52/52/94-CX, dated 1-94-1994 issued by the Ministry of Finance (Department of Revenue) may also be reproduced as under: "Perusal of the said explanation (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts, In this case unlike our case:- (a) Merino was registered brand name of Merinoply Chemicals; (b) Merinoply Chemicals was a large scale manufacturer of the same goods; (c) Merinoply Chemicals never disputed that the brand name "Merino" does not belong to them; (d) The intent on to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood was there. It is true that in so far as the first 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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