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TMI Blog2004 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... d/logo - "MERINO" - along with the brand name - "Pelican" - on the plywood being manufactured by them and the officers of the Department entertained a view that as the logo of "MERINO" is also being shown on the plywood being manufactured by them, apart from their own logo of "Pelican" and as the owner of the brand "MERINO" i.e. M/s. Merinoply and Chemicals Ltd., is a large scale manufacturer of plywood not entitled to the benefit of small scale exemption Notification No. 175/86-C.E., dated 1-3-1986, as amended, the respondents were also not entitled to the benefit of the said exemption Notification in view of Clause 7 of the same. The second respondent - M/s. Plyking is one of the traders from whose premises plywood was seized by the officers of the Central Excise. 3.On adjudication, the Commissioner of Central Excise, Calcutta vide his impugned order held that the logo indicating "MERINO" in a specific manner was the brand name used by M/s. Merinoply and Chemicals Ltd. Who were not eligible for the grant of benefit of Notification No. 175/86-C.E. and as such denied the benefit to the first respondent firm and accordingly confiscated the seized plywood. The officers also confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Clause 7 reads as follows : ""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." 8.Mr G.E. Vahanvati, learned Solicitor General, submitted that the impugned goods admittedly contained the registered logo "MERINO" belonging to and owned by M/s. Merinoply and Chemicals Ltd. Thus it was a clear case where the impugned goods were admittedly affixed with registered logo/trade mark of the other person not eligible to S.S.I. exemption. According to the learned Solicitor General, the CEGAT erred in not appreciating that to attract provision of Clause 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd "MERINO" in between the respondents' own brand name and that the respondents' brand name "Pelican" has been clearly marked and their logo in the shape and style - 'encircled Bird' - has been put on the product and comparing the same with the markings put on their plywood by M/s. Merinoply and Chemicals Ltd. It is found that apart from writing the word, "MERINO" in a style, the said marking also uses the word, "TUFFPLY" which is the brand name of M/s. Merinoply and Chemicals Ltd. Below the same, pictures of Boiling Water and Termite working on wood and sun, have been placed to indicate that the ply in question is boiling water-proof, termite-proof and weather-proof and that such markings are not found on the products manufactured by the respondents firms. Submitting further, learned Counsel appearing for respondent No. 1 contended that the brand name as defined in Explanation VIII of the Notification will not create an impression in the mind of the purchaser that the product is that of M/s. Merinoply and Chemicals Ltd. and that the use of markings as indicated above by the respondents cannot be said to indicate any connection in the course of trade between such specified goods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985) have contravened the provisions of Rules 9(1), 173B, 173C read with Section 4 of the Central Excises and Salt Act, 1944 and Rules 173F, 173G(2) read with Rules 52A and 226 of the Central Excise Rules, 1944, by way of suppressing the material fact of use of "MERINO" brand/logo on their said goods which is actually owned by M/s. Merinoply and Chemicals Ltd., a large scale manufacturer of plywood, having annual clearance value of more than Rs. 2 crores and thereby becoming ineligible for the benefit of exemption granted under Government of India, Notification No. 175/86-C.E., dated 1-8-1986, as could be seen from the notice of show cause issued to the respondents on 4-9-1991. We, therefore, hold that M/s. Merinoply and Chemicals Ltd., owns the said "MERINO" brand/logo and, therefore, the plywood containing the imprint of such registered "MERINO" brand/logo were not eligible for grant of benefit as per terms and conditions of the said Notification No. 175/86-C.E., dated 1-3-1986 during the material period. The said Company never disputed the fact that "MERINO" brand/logo belonged to the said M/s. Merinoply and Chemicals Ltd., a large scale manufacturer of plywood who are not enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, the respondents are not owners of the trade mark "ARR". They do not claim to have any rights in the photograph of the founder of the group. Therefore, reliance by the Tribunal on this circular is entirely erroneous. The Tribunal then proceeds on the basis that the exemption can be denied only if trade mark or brand name is used in respect of the same goods for which the trade mark is registered. In coming to this conclusion, we are afraid that the Tribunal has done something which is not permissible to be done in law. It is settled law that Exemption Notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other Notification are of no benefit in construing a particular Notification. Clause 4 of this Notification and the explanation (set out hereinabove) make it clear that the exemption will not apply if the specified goods (i.e. scented supari) bears a brand or trade name of another person. Neither in Clause 4 of the Notification nor in Explanation IX is it provided that the specified goods must be the same or similar to the goods for which the brand name or trade name is registered. The Tribunal has in adopting the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell pickle with the name "Mahaan" written in exactly the same style as a registered trade mark of other Company. The question would be whether by adding the words "Taste maker" the respondents could get the benefit of the Notification. We have today delivered a judgment in Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders - 2004 (165) E.L.T. 481 (S.C.) (Civil Appeal Nos. 3227-3228/1998) wherein we have held in respect of another Notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different so long as the trade name or brand name of some other Company is used the benefit of the Notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the Notification. Such a view has been taken by the Tribunal in the case of Festo Controls (P) Ltd. v. CCE, Bangalore [1994 (72) E.L.T. 919]. We approve that decision. It is settled law that in order to claim benefit of a Notification a party must stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticals (P) Ltd. v. Collector of Central Excise, Chandigarh (supra) : This judgment will not be of any assistance to the case on hand. It is distinguishable on facts and on law. Since it does not apply to the case on hand, we are not inclined to consider the same. 22.Learned Solicitor General argued that exception or exempting provision in taxing statute should be construed strictly. For the said proposition, we can safely and beneficially rely on the recent judgment pronounced on dated 17-11-2004 in C.A. No. 7994 of 2003 (State of Jharkhand & Ors. v. Ambay Cements & Anr.) by a Bench of S.N. Variava, Dr. A.R. Lakshmanan & S.H. Kapadia, JJ. It is useful to reproduce paragraphs 25, 26 & 27 of the judgment which read as under : "In our view, an exception or an exempting provision in a taxing statute should be construed strictly and it is not open to the Court to ignore the conditions prescribed in the Industrial Policy and the exemption Notifications. In our view, the failure to comply with the requirements renders the writ petition filed by the respondent liable to be dismissed. While mandatory rule must be strictly observed, substantial compliance might suffice in the case of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the exemption set out in clause 7 to the Notification. Something more is required by Explanation VIII and that is, the above markings must have been used in relation to the specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and BHEL using such name or mark with or without any indication of the identity of BHEL. Here, there is no symbol, no monogram, no label and no signature of any nature much less of BHEL found on the components manufactured by the Units. The markings or inscriptions found on the components may amount to invented words or writings. But the markings or inscriptions have not been and are not being used by BHEL at all. They have been used and are being used by the Units and Units alone, may be pursuant to the contractual requirements between BHEL and the Units even as per the averments in the counter affidavit of respondents 1 to 3. The markings or inscriptions, individually or cumulatively do not go to constitute a name or a mark such as symbol, monogram etc. of BHEL, used by BHEL in relation to the components manufactured by the Units. They may have a purpose to serve. But certa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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