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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 ..... de the impugned Judgment and restore the Order passed by the Commissioner of Central Excise dated 19th May, 1999. However, by this Order, the Commissioner has also imposed penalty in a sum of ₹ 10,00,000/- under Rule 173Q of the Central Excise Rules. While the conclusions of the Commissioner that the Respondents were not entitled to the benefit of the Notification are correct, the fact still remains that the Tribunal has in a number of matters given an interpretation as understood by the Respondent. It therefore cannot be said that the Respondents could not have taken the view they did. It cannot be said that they could never have concluded that they were entitled to the benefit of the Notification. We therefore feel that this is a case where penalty should not be imposed. We therefore delete the imposition of penalty on the Respondents. - 2348-2349 of 2000 - - - Dated:- 12-4-2005 - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Judgment per : S.N. Variava, J.]. - These Appeals are filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 14th October, 1999. The Respondents are a subsidiary of one M/s. Grasim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) (3) (4) (5) 1. 13 Lac Nil - 9. 2502.29 All goods manufactured in. - Factory using vertical shaft kiln, with installed (I) capacity certified as not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; factory using rotary kiln, with installed capacity (II) certified as not exceeding 600 tonnes per day or 1,98,000 tonnes per anum and the total clearances of the cement produced by the factory, in a financial year, shall not exceed 2,20,000 tonnes. Rs. 2 per tonne 2 Conditions Condition No. 1. If the manufacturer of the food preparations produces a certificate from an officer not below the rank of a Deputy Secretary to the Government of India or not below the rank of a Deputy Secretary to the State Government concerned to the effect that such food preparations have been distributed free to the economically weaker sections of the society under a programme duly approved by the Central Government or the State Government concerned, within five months from the date of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd name or trade name of some other company. 5.The Commissioner, by his Order dated 19th May, 1999, held that the Respondents were not entitled to the benefit of the Notification. It was held that they were liable to pay a differential duty of Rs. 47,74,961/- and a penalty of Rs. 10,00,000/- under Rule 173Q of the Central Excise Rule, 1944. The Respondents filed an Appeal before the CEGAT which, as stated above, has been allowed on the basis of Judgments referred to earlier. 6.Apart from the Judgments relied upon by the Tribunal, some other Judgments of the Tribunal, taking a similar view, have also been cited before us. It was submitted by Mr. Vellapally, on behalf of the Respondents, that based on the Judgment of this Court in Astra Pharmaceuticals (P) Ltd.'s case (supra) the Tribunal has consistently been holding that the benefit of such Notification is not lost by use of the name of a company. It was submitted that most of the Judgments of the Tribunal were not appealed against by the Department. It was submitted that as no Appeal had been filed against those Judgments, the Department should not be allowed to discriminate by filing an Appeal in this case. 7.In support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was whether the Appellants (therein) were liable to pay duty on Dextrose Injection manufactured by it under Tariff Item 14E. The said Tariff Item read as follows : Tariff Item No. Description of Goods Rate of duty Basic Special Excise 14E Patent or Proprietary Medicines not containing alcohol, opium, Indian Hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively ayurvedic, unani, sidha or homoeopathic. 12-1/2% Adv. 10% of the basic duty chargeable Explanation : I "Patent or proprietary medicines" means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia Formulary or other publications notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958) or any other mark such as a symbol, monogram, labe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that when they are used in the context of a "Brand name or a trade name" which may be registered or not. Further, the Explanation to Tariff Item 14E nowhere uses the words "trade name". As is commonly known, a trade name can be a name in which or by which a person or body carries on their trade. It would, if the context so permits, include the name of a company. In the context of a "trade name" the words "a name" and "or any writing" would cover the name of a company so long as it is used in relation to the product and is used for the purpose of indicating a connection in the course of a trade between the product and other person. 13. As has been set out hereinabove, in this case there is no denial that M/s. Grasim Industries Ltd. were manufacturer of cement. There is also no denial that the purpose of using the words : "Manufactured by Dharani Cements Ltd. A Subsidiary of Grasim Industries Ltd." was with an intention of indicating a connection between the product i.e. the cement and M/s. Grasim Industries Ltd. In such cases, clearly the Respondents were using a trade name of some other company with the purpose of indicating a connection in the course of trade betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within the purview of a mark or a symbol or a monogram or label or any invented word in view of the reasons furnished above. 11. The next question is whether it comes within the purview of a writing which is used in relation to such specified goods for the purpose of indicating a connection in the course of the trade. In this connection, we have to look into the definition of "WRITE" "WRITING" in the OXFORD DICTIONARY. The same are defined as follows :- Write (r-) v. (past t. Wrote, past part, Wri'tten). Form symbols representing letter (s) or word (s) esp. on paper, parchment, etc., with pen, pencil, brush, etc., form (such symbols), set (words etc.) down in writing, express in writing; chronicle, make record or account of; convey (message, information, etc.) by letter; engage in writing or authorship; produce writing; ~ down, set down in writing; write in disparagement or depreciation of; reduce (total, assets, etc.) to lower amount; ~ off, record cancelling of (bad debt, depreciated stock, etc.); reckon as lost or worthless; ~- off (n.) something that must be regarded as total loss or wreck, failure; ~ out, make written copy of; transcribe in full or detail; ~ up, write ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a Notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect. 16. This Court has, in the case of Royal Hatcheries Pvt. Ltd. v. State of A.P. reported in 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly understood. Any name or mark or writing, even the name of a company is sufficient so long as it is used for the purpose of indicating a connection between the product and that Company. The use of the words "A quality product from ITL group" clearly showed an intention to show a connection between the product and the ITL group. These words indicated that the quality of the product was the same as that of a product of ITL group. If use of such words did not disentitle a party from the benefit of the Notification, we fail to understand what sort of words would disentitle a party. The decision of the Tribunal in this case is clearly erroneous and will stand overruled. 19. In this view of the matter, we set aside the impugned Judgment and restore the Order passed by the Commissioner of Central Excise dated 19th May, 1999. 20. However, by this Order, the Commissioner has also imposed penalty in a sum of Rs. 10,00,000/- under Rule 173Q of the Central Excise Rules. While the conclusions of the Commissioner that the Respondents were not entitled to the benefit of the Notification are correct, the fact still remains that the Tribunal has in a number of matters given an interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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