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TMI Blog2024 (9) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Trade Make, but the appellant has come out with a case that Siddhi Corporation had not got the brand name registered in its name from the Trade Mark Authority. Merely because the appellant did not get the brand name registered in its own name, it cannot be urged that the exemption cannot be denied for the reason that nothing has been brought on record by the department to show that the brand name is in the name of some other person. Reference can be made to the decision of the Tribunal in Mukur Pharmaceuticals Co. P. Ltd. vs. Commr. of C.Ex., Chandigarh [ 2000 (3) TMI 668 - CEGAT, NEW DELHI] , wherein it was observed ' The onus of proof is on the department to show that the brand name belongs to another person.' Confirmation of the demand on mineral water cleared under the brand name YES during the period from October, 2014 to August, 2016 - appellant contends that mineral water with YES brand was cleared to M/s. Bhagwati Beverages, Jodhpur under an agreement which allows the appellant to process, pack and sell mineral water with brand name YES to them alone and not to consumers or in the market - HELD THAT:- M/s. Bhagwati Beverages clearly knew that the brand name di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Commissioner (Appeals) that has confirmed the imposition of penalty upon her under the Central Excise Rules. 5. The appellant manufactures mineral water and claimed benefit of an exemption notification dated 01.03.2003 that provides that the first clearances of specified goods upto Rs. 1.50 crores in a financial year would be exempted from central excise duty provided the goods cleared did not bear brand name or trade name, whether registered or not, of another person. The benefit of this exemption notification has been denied to the appellant for the reason that the goods cleared by the appellant bore brand name YES and SAFE and both the brand names are not registered in the name of appellant. 6. As the issue involved relates to exemption of duty under the notification, it would be appropriate to reproduce the relevant portion of the notification dated 01.03.2003 and it is as follows: In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) ( hereinafter referred to as the Central Excise Act ) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 8/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation shall come into force on the 1st day of April, 2003. Explanation:- For the purposes of this notification, (A) brand name or trade name means a brand name or a 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; ( emphasis supplied ) 7. The contention of Shri O.P. Agarwal, learned chartered accountant appearing for the appellant is that the onus was on the department to prove that the brand names were owned by some other person, but the department failed to bring any evidence to prove that the brand names were owned by any other person. Learned chartered accountant, therefore, submitted that the Commissioner (Appeals) was not justified in denying the benefit of the exemption. In this connection, learned chartered accountant placed reliance upon the decision of the Tribunal in Mukur Pharmaceuticals Co. P. Ltd. vs. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case that Siddhi Corporation had not got the brand name registered in its name from the Trade Mark Authority. Merely because the appellant did not get the brand name registered in its own name, it cannot be urged that the exemption cannot be denied for the reason that nothing has been brought on record by the department to show that the brand name is in the name of some other person. 15. In this connection, reference can be made to the decision of the Tribunal in Mukur Pharmaceuticals Co. P. Ltd. vs. Commr. of C.Ex., Chandigarh 2001 (135) ELT 569 (Tri.-Del.) , wherein it was observed: 5. We have considered the submissions of both the sides. Para 4 of notification No. 1/93 provides that the exemption contained in the notification shall not apply to the specified goods bearing a brand name or trade name (registered or not) of another person. This paragraph will be applicable only if, firstly the specified goods bear a brand name or trade name and secondly the brand name or trade name should belong to another person. We find substantial force in the submissions of the learned Advocate for the appellants that no material has been brought on record to show that the word swift which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. There will be no order as to costs. 17. The second issue that arises for consideration is confirmation of the demand on mineral water cleared under the brand name YES during the period from October, 2014 to August, 2016. 18. The appellant contends that mineral water with YES brand was cleared to M/s. Bhagwati Beverages, Jodhpur under an agreement which allows the appellant to process, pack and sell mineral water with brand name YES to them alone and not to consumers or in the market. The appellant would, therefore, be entitled to the benefit under the exemption notification as the entire goods with brand name YES were sold only to M/s. Bhagwati Beverages under the agreement. M/s. Bhagwati Beverages clearly knew that the brand name did not belong to the appellant and, therefore, the brand name did not in any way indicate any connection in the course of trade between such specified goods and the appellant. According to the appellant, all the packing materials printed with brand name YES were provided by M/s. Bhagwati Beverages, who in fact sold such packed goods to the customers who know that they were buying mineral water with the brand name YES of M/s. Bhagwati Beverages. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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