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TMI Blog1973 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Government amended the Central Excises and Salt Act, 1944 by an amendment introduced in Finance Act, No. 2 of 1971. In Chapter VI of the said Act, Section 40 provided for an insertion of Item 22D in First Schedule to the said Act of 1944, which is as under :- "22D. Articles of ready-to-wear apparel (known commercially as readymade garments) including under garments and body-supporting garments but excluding articles of Hosiery, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power." 2.A 10 per cent excise duty was leviable under this provision and the said provision came into force on May 29, 1971. The Government of India issued a Notification No. 94 of 1971, dated May 29, 1971 grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm of the petitioner did not wish to manufacture or sale the goods under the brand name, excepting 12 or 13 dozens of readymade gaments in a year (only to keep the registration alive) and on these goods the petitioner was ready and willing to pay duty. The petitioner averred that goods manufactured and marketed without brand name were not liable to duty in view of the exemption declared by the Notification No. 94 of 1971, dated May 29, 1971 which is at Annexure "A" to the petition. The petitioner stated that he was prepared to co-operate with the department to supply all the details and forms as is required under the law so that dutiable goods may be ascertained. The insistence of the authority that the petitioner was not entitled to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh if the goods are sold under the brand name and marketing them with a brand is only one of the ways of selling them. For selling them under a brand name it is enough that at the time of sale it is made known to buyer that the goods are of the same quality as those bearing the brand and have a connection with them in the course of trade. In the present case "sold under a brand name" means sold by a manufacturer having a registered brand name. 4.The question which arises is one of interpretation of Entry 22D and the notification Annexture "A". The material part of the notification Annexure "A" is as follows:- "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification is that the articles, i.e. ready-to-wear apparel, which bear no brand or trade name are not subject to payment of duty. The articles mentioned in Item 22D which do not bear the brand or trade name are exempted from the duty. What the petitioner claims is that the goods manufactured and marketed without brand name are not liable to duty under the exemption declared by the notification and this contention of the petitioner is justified in view of the provisions of the said notification. Mr. Vidyarthi contended that the phrase used in the proviso "sold under the brand name" means sold by a manufacturer having a registered brand name. Now the said phrase refers to the articles and that being so the same has to be construed as meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what we have said herein before, the petitioner is entitled to clear the goods manufactured and which are not marked under a brand name that is a name or other trade mark registered under the Trade and Merchandise Marks Act, 1958. We may make it clear that the stand taken by the respondents that so long as the article falling under Item Nos. 1, 2 and 3, notification Annexure "A" are sold irrespective of the facts whether they are affixed with label "MEBRO" or are not, are liable to pay duty since the petitioner has not got trade mark de-registered cannot be accepted. It is not necessary for the petitioner that he should get the trade mark de-registered in order to claim exemption in respect of the goods which it manufactures and which it m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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