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TMI Blog2006 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... not to take advantage of the brand name in its trade, it could at least have the benefit of the rate of duty applicable to unbranded product. Appeal allowed. The The impugned decision of the Tribunal that the Commissioner was wrong and held that the second type of packing was very similar to the first type and, therefore, was also classifiable under T.H. 2001.10 is set aside. - 1138 of 2001 - - - Dated:- 26-4-2006 - Ruma Pal and Dalveer Bhandari, JJ. [Order]. - The question in these appeals is whether 'French Fries' should be classified under sub-headings 2001.10 or 2001.90 of Chapter 20 of the Central Excise Tariff Act, 1985. The two entries read as follows : Heading No. Sub-heading No. Description of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved the department preferred an appeal before the Tribunal. The Tribunal came to the conclusion that the Commissioner was wrong and held that the second type of packing was very similar to the first type and, therefore, was also classifiable under T.H. 2001.10. 4. The difference between the two competing headings lies in the characteristics contained in T.H. 2001.10 namely that the preparation described in T.H. 2001.10 must be put in unit, containers and secondly must bear a brand name. The words 'brand name' have been defined for the purposes of Chapter 20 where these entries occur as follows : "Brand name" means a brand name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate a relation with the appellant. It merely describes the contents of the packet. The phrase 'French Fries' is in fact used in Americas to describe particular kinds of potato chips. These descriptive words could not be treated as the brand name as the Asstt. Commissioner has purported to do. The submission of learned counsel appearing before us is that it is the manufacturer's name which is sufficient to place the second type of packets within the tariff entry 2001.10 is also unacceptable. The two tariff entries draw a distinction between unbranded and branded unit containers. This assumes that it is possible for unit containers to be sold without bearing a brand name. Under the Standard Weights and Measures (Packets Commodities) Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person. In construing what a brand name meant, the court relied upon Narayan's book on Trade Marks and Passing- off where a brand name was described as a product mark or a mark by which the product is identified and asked for. 11. There is a value attached to the brand name, a value which has been recognized in the tariff entry by providing for levy of excise duty on goods bearing a brand name. It may be that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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