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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 ..... brand name. - 2360-2361 of 1999 - - - Dated:- 8-12-2004 - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Judgment per : Dr. A.R. Lakshmanan, J.]. - Both the above appeals are filed against the common judgment passed by the Customs, Excise Gold (Control) Appellate Tribunal, Calcutta in Appeal Nos. E-246/92, E-279/92 and Order Nos. A-593-594-CAL/98, dated 9-6-1998 reported in 2000 (124) E.L.T. 741. Both the appeals are against the same and common impugned judgment. Both the above appeals are being disposed of by this common judgment. 2.Briefly stated, the facts of the case are as under : The respondents M/s. Emkay Investments Private Limited and M/s. Plyking who are engaged in the manufacture of plywood classifiable under sub-heading 4408.90 of the Schedule Act, 1985. The said factory was visited by the Central Excise Officers who found that the respondents are also using the brand/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 "Peli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General, appearing for the appellant and Mr. C. Hari Shankar, learned Counsel, appearing for respondent No. 1. Respondent No. 2 did not engage a lawyer to represent their case. They sent their counter affidavit by post. 7.The dispute, in the instant case, is as to whether the respondents who are manufacturers of plywood under their own brand name "Pelicon" have made themselves disentitled to the benefit of small scale exemption Notification No. 175/86-C.E. by using a logo indicating "MERINO" on their products along with their brand name. The next question which arises is as to whether the markings or inscriptions should be considered as the brand name of M/s. Merinoply and Chemicals Ltd. and will come within the mischief of Clause 7 read with Explanation VIII of the Notification, as contended by the Department. Clause 7 reads as follows : "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 of Clause 7 reads as follows : ""Brand name" o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise, Chandigarh-I v. Mahaan Dairies, 2004 (166) E.L.T. 23 (S.C.) 4. Commissioner of Central Excise, Chandigarh-II v. Bhalla Enterprises, 2004 (173) E.L.T. 225 (S.C.). 10.Mr. Hari Shankar, learned Counsel appearing for respondent No. 1 submitted that Clause 7 read with Explanation VIII of the Notification does not make a registration or otherwise of the brand name or trade name, a relevant factor and that it is not sufficient to find a portion of the symbol or monogram of the other person on the product to oust them from the benefit of Notification or to bring the goods within the ambit of Explanation VIII. He would further argue that the Tribunal by a comparison of the markings found that the same are entirely different except the use of the word "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" w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s advanced by the Tribunal does not appear to be correct in law and in fact. It was imperative that by using the registered logo "MERINO" belonging to M/s. Merinoply and Chemicals Ltd. on their own product M/s. Emkay Investment Ltd. fulfilled the purpose of indicating a relation between the said products and the logo owner so as to influence the trade and therefore, the provision of Explanation VIII were fully satisfied so far as the case on hand was concerned. The finding of the Tribunal to the contrary, in our opinion, is wrong and liable to be set aside. 16.The first respondent M/s. Emkay Investment Pvt. Ltd., a manufacturer of plywood in the brand name of "MERINO" classifiable under sub-heading 4408.90 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that they were not eligible to get exemption under the Notification. The appeal filed by the respondent was also dismissed by the Commissioner (Appeals). However, the Tribunal allowed the appeal of the respondents. The Commissioner of Central Excise preferred civil appeal to this Court which was allowed by this Court. S.N. Variava, J. speaking for the Bench held as under : "In our view, this Circular has no application to the facts of the present case. What the Circular clarifies is that if there are more than one registered owners in respect of the same trade mark then merely because the other person has the same registered mark in some other goods would not preclude the owner of the trade mark from getting the benefits of the circular. In this case, admittedly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the registered trade mark is not entirely reproduced does not take the respondents out of Clause 4 and make them eligible to the benefit of the Notification." 19.In the case of Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies (supra), the appeal was filed before this Court by the Commissioner of Central Excise, Chandigarh. The question in this case before the Tribunal was whether the respondents are entitled to exemption of Notification No. 8/98-C.E., dated 2-6-1998 under which certain goods were exempted from payment of excise duty. However, the exemption was not available if the goods bore a brand name or trade name (whether registered or not) of another person. S.N. Variava, J., speaking for the Bench, observed as under : "However, the respondents also sell 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) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the brand name belongs to the assessee himself although someone else may be equally entitled to such name." 21.Astra Pharmaceuticals (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 proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accepted by the learned single Judge, who opined that certain stencil marks on the components manufactured by the Units made by them would make the components, though manufactured by the Units, as having been affixed with a brand name or a trade name of BHEL which is not eligible for the grant of exemption under the Notification within the meaning of Clause 7 read with Explanation VIII of the Notification. This construction of the learned single Judge was the subject-matter of the challenge in the writ appeals. The Bench observed as follows : "........The name or mark is equated to symbol, monogram, label, signature or invented word or writing. But a mere finding of symbol, monogram etc., on the goods would not bring the matter within Explanation VIII, so as to fall within the exception 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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