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TMI Blog1995 (1) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... e Schedule to the Central Excise Tariff Act, 1985, since 1952 onwards. The goods manufactured are said to be marketed under the brand name `BELL' (with Emblem) duly registered with the Registrar of Trade Marks since 1959 (3-3-1959) in respect of pins and clips for paper which are meant for office use. The said items are said to fall under Class 16 of the IV Schedule to the Trade and Merchandise Marks Act, 1958. The Registeration Certificate is said to be periodically renewed till date, as a consequence of which the petitioner-firm is said to have become the exclusive owner of `BELL' trade mark (with emblem) in respect of their goods pins and clips for paper only. It is further stated that the said business was started(b) in the year 1952 by Mr. A. Chelladurai as a Proprietary concern and as the family grew, the sons of the proprietor were added as partners subsequently. It is also claimed that the petitioner-firm is a Small Scale Industry recognised by the Department of Industries and Commerce having a permanent Certificate bearing No. 18 : 14 : 00075 : PMT : SSI. Till 31-3-1994, it is stated that the petitioner-firm has been availing the exemption extended to the Small Scale Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the amendment issued to the Notification No. 1/93 on the ground that the petitioner is using the brand name `BELL' belonging to the other persons. Apart from reiterating the stand taken in the other writ petition, it is also contended that the goods manufactured by the petitioner are Staples and are totally different from the goods manufactured by the petitioner in the other writ petition namely, paper pins and clips and the brand or trade name used by the petitioner in W.P. No. 9869 of 1994 cannot be said to have been used by the petitioner herein. In other respects, similar contention as laid down in the other writ petition, are reiterated. 4.Writ Petition No. 9871 of 1994 has been filed by the petitioner therein, carrying on business the manufacture and sale of safety pins made of steel falling under Chapter and Heading 7319.00 of the Schedule to the Central Excise Tariff Act, 1985 since 1952. The manufactured goods are said to be marketed under brand name `BELL' (only letters with no emblem) since 1960 and the said mark or name has not been registered. The firm in question was said to have been started in the year 1960 with its own machinery and investment and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner-firm and the word `BELL' is not registered by the unit. The word `BELL' is said to be used by the Bell Pins Manufacturing Company and M/s. Lilly Pins Manufacturing Company also for their products namely, staples in straps falling under 8305.00 and steel safety pins falling under 7319.00 respectively. All these units are said to be marketing their products Bell Pins and Bell safety pins. Though they are not using the emblem `BELL', it is also stated that as per the Notification No. 59/94 amending Notification 1/93, the exemption is not available to the petitioners for the reasons that they are using the brand name of other persons. It is also stated that since the word `BELL' is used by all the three other units, it amounts to use of brand name or trade name of another person. The use of the common brand name `BELL' by letters for the goods manufactured by them is said to be a disentitling factor to claim the exemption in question. The respondents further states that as the modification effected by Notification 59/94 was in public interest, to prevent the fragmentations of big units in order to get benefit of Small Scale Industries exemption, resulting in deprivation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.C. 418 [Union of India v. Century Manufacturing Co. Ltd.] in support of his claim. 7.Learned counsel for the respondents relied upon the decisions reported in 1986 (24) E.L.T. 492 [Union of India Others v. Aruna Sugars Ltd. Others]; 1988 (35) E.L.T. 290 - [Match House v. Supdt. of C. Excise] and 1994 (60) E.L.T. 172 [Nectar Beverages Pvt. Ltd. v. Union of India] in support of his stand. 8.The decision in 1978 E.L.T. (J 18) is that of a learned Single Judge of this Court holding that putting marks or labels on the containers with the object of identifying the end-product and enhancing the goodwill of the product would not form part of the manufacture. We are not concerned in this case with the fixing of liability of the petitioners with reference to their manufacture of goods. There is no dispute that the petitioners are manufacturing and marketing the products with a brand name or trade name affixed thereon. The question is whether the user of the particular brand name for their respective products disentitled the benefit of exemption granted to them by Notification in 175/86 as amended by Notification 1/93 and whether they rendered themselves ineligible for exemption by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ambiguity and trying to interpret it in a supposed intention of the makers of the Notification. 10.On a careful consideration of the submission of the learned counsel appearing on either side, I am of the view that the main issues raised in these writ petitions also are squarely covered by the decision dated 16-12-1994 sepa- rately delivered today in W.P. Nos. 8825 to 8832 of 1994 [reported in 1995 (76) E.L.T. 265 (Mad.)] whereunder it has been held that the provisions contained in paragraph 4 of Notification No. 59/94 is constitutionally valid and enforceable. In view of the above, the challenge made to the constitutionally validity and the legality of paragraph 4 of the Notification No. 59/94 is liable to be rejected applying the ratio of the decision in W.P. Nos. 8825 to 8832 of 1994. The further issue raised for consideration in these cases is that the petitioners in these cases cannot be said to be using the brand or trade name of some other person since they have themselves acquired a right to use the name `BELL' apart from the fact that there is no identity of use in respect of similar or identical goods. 11.The fact that the three units which have filed the above Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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