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TMI Blog2005 (4) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Chandigarh reported in 1995 (75) E.L.T. 214 (S.C.), held that the benefit of Notification No. 5/98-C.E., dated 2nd June, 1998 is not lost by the Respondents because they show on their product the name of the holding company, namely M/s. Grasim Industries Ltd. 3.For a consideration of these Appeals, it is first necessary to set out Notification 5/98-C.E., dated 2nd June, 1998, which reads as follows : "Notification No. 5/98-C.E., dated 2-6-1998 Effective rate of duty for specified goods of Chapters 13 to 96 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling with the Chapter, heading No. or sub-heading No. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said Schedule), specified in the corresponding entry in column (2) of the said Table, from so much of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her notification shall be included. However, the clearances of cement effected on payment of duty at the rate of Rs. 350 per tonne shall not be taken into account for computing the above mentioned quantity of ninety-nine thousand tonnes. The exemption under this notification shall not be (iii) applicable to, cement manufactured from such clinker which is not (a) manufactured within the same factory and (b)cement bearing a brand name or trade name (whether registered or not) of another person; Explanation. - For the purpose of condition (ii), "brand name" or "trade name" means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, signature, or invented words or any writing which is used in relation to a product for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person." 4.The Appellants contended that the Respondents were using the name of M/s. Grasim Industries Ltd. with the purpose of indicating a connection between the product i.e. the cement manufactured by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary, 2005. However, in this case, we find that the Court refused to interfere because there was an earlier Judgment which had not been challenged in the case of concerned assessee itself. 9.We find some substance in this submission. However, Mr. Dutta points out to us that no Affidavit in Reply had been filed in these Appeals. He submits that no such contention had been taken in advance. He states that he is therefore not in a position to make a statement as to whether or not Appeals were filed against the various Judgments of the Tribunal shown to this Court. He submits that time should be given to him in order to find out whether Appeals were filed or not. 10.This contention was taken up by Mr. Vellapally after a full day of argument and only after finding that this Court was against him on merits. It is not just a legal submission but is based on a factual situation which would require checking. After a full hearing this Court is not going to adjourn this case. As no such contention was taken earlier by filing any Affidavit in Reply we do not propose to dismiss these Appeals on this ground. Even otherwise, we find that in all Judgments, relied upon, the Tribunal has taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prietary medicines". In our case and the other cases earlier dealt with by the Tribunal the phrase under consideration is "brand name or a trade name". The subject matter of Tariff Item 14E and the Notifications being considered are completely different. Whilst interpreting the phrases "brand name or trade name" an interpretation given in respect of "Patent or proprietary medicines" can be of no assistance. Even otherwise, there is a considerable difference between the Explanation to Tariff Item 14E and the Explanation in the concerned Notification. The explanation to Tariff Item 14E provides that the patent or proprietary medicine must, amongst other things, be a brand name i.e. a name or a registered trade mark under the Trade and Merchandise Marks Act. In the Explanation under consideration the "brand name or a trade name" may be registered or unregistered. The registration need not be only under the Trade and Merchandise Marks Act. Undoubtedly, the words "any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "MANUFACTURED IN INDIA BY NIPA CHEMICALS LTD., In Collaboration with Nihon Parkerizing Co. Ltd., Japan. 46, Garuda Buildings, Cathedral Road, Chennai-600086. MARKETED IN INDIA BY Goodlass Nerolac Paints Ltd., GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI-400013." The Tribunal held that the use of these words did not preclude the Appellants (therein) from availing of the benefit of the Notification. To be immediately noted that in that case it was neither admitted nor proved that the words were used to indicate a connection between the product and Nihon Parkerizing Co. Ltd. The Tribunal so notes. Had the Tribunal based its decision on this aspect no fault could have been found. However, the Tribunal then goes on to hold as under : "9. It is further mentioned in the above said explanation by stating that the name or a mark means a symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating the above said connection. The writings in the above said case, in our opinion cannot come within the purview of symbol. It cannot also be a monogram. The same cannot be a label or a signature. It cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating the names of two companies. Therefore, in our view, these will never come within the purview of "brand name" in view of the fact that they do not come within the meaning of "name" or "mark" which is elaborated in the explanation to "brand name" and this being the position, the arguments of the learned DR cannot be accepted. .........." In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms "brand name or trade name" get qualified by the words which follow. The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words "any wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has unnecessarily also gone on to comment as follows : "Mere indication of the foreign company's name does not create any association in the course of trade between the goods and the foreign company." There would be no purpose in indicating the foreign company's name in relation to the product except to indicate a connection between the product and the foreign company. Therefore, to this extent, the Tribunal is not correct. 18. In the case of Commissioner of Central Excise, Hyderabad v. Sarat Electronics reported in 2004 (167) E.L.T. 404 the question was whether the Respondents (therein) were entitled to benefit of Notification No. 1/93-C.E., which Notification was identical to the one under consideration by us. The Respondents therein used the words "SARAT" in bold letters following which the words "A quality product from ITL group" and "Technical licencee of ITL" were also printed. The Tribunal, following its earlier decisions, held as follows : "6. In the facts of the present case, we are of the view that the expression "ITL" was used to convey the name of the company and not as a trade mark. It showed that the technical know-how was obtained from Instrument Techniques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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