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TMI Blog2001 (5) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... EL. They had also manufactured goods under the brand name of 'Bisleri Club Soda' with the permission of M/s. Acqua Minerals (P) Ltd. (hereinafter referred to M/s. AMPL) and they had availed and paid duty under exemption Notification 175/86 and 1/93, for the said 'Citra' and 'Bisleri Club Soda' bottles, claiming that the brand name owners, were registered with the Directorate of Industries as a Small Scale Unit and therefore they were also eligible for exemption under the said notification. 3.On the basis of intelligence gathered, that M/s. Parle Exports Ltd., and Parle International Ltd., (hereinafter referred to as PEL and PIL) were under-valuing the concentrate, and thereby evading Central Excise duty, investigations were caused to be made by Officers of Directorate General of Anti-evasions and the Central Excise Jurisdictional Officers. 4.Enquiries were caused and statements were recorded and pursuant to the said operations, it appeared that M/s. BBPL availed the SSI exemption fraudulently in conspiracy with AMPL and PEL by wilfully making a mis-statement and suppressing correct facts and Central Excise duty amounting to Rs. 39,51,028/- for the period from July, 1993 to Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the brand name 'Bisleri' or is it 'Bisleri Club Soda'? Who is the owner of the brand name? Brindavan Beverages availed SSI exemption under Notification 175/86 on Bisleri Club Soda, on the basis of their averment that the brand name thereof, Bisleri, was owned by another SSI unit, viz., Acqua Mineral, Delhi. The same was accepted and their CL approved on this basis. (i) It was found in the course of investigations that 'Bisleri' and 'Bisleri Club Soda' are two different brand names, registered separately. 'Bisleri' was registered under number 260716, 272893 and 272894 and owned by Bisleri India (P) Ltd., a subsidiary company of Parle Exports Ltd. 'Bisleri Club Soda' was registered under number 399020 and owned by Parle Exports Ltd. (ii) The trade marks pertaining to 'Bisleri' were assigned to Acqua Minerale , a family concern of Shri Ramesh Chauhan by a deed of assignment dated 17 November, 1987. 'Bisleri Club Soda' was not assigned to anybody till July, 1993, when Parle Exports corrected the deed of assignment for 'Bisleri' saying that by omission they had not transferred the brand name 'Bisleri Club Soda' to Acqua Mineral. As duty is(iii) leviable at the time and place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be read as, whether or not registered in the name of the ineligible others. In other words, the criterion is whether the effective owner of the brand name is eligible or ineligible for the exemption. (vii) The concept of "who is calling the shots" as formulated in Calcutta Chromo type is applicable here by analogy. It is Parle Exports who is calling the shots in connection with Bisleri Club Soda, as discussed above. Hence, even for the period after July, 1993 Parle Exports remained the effective owner of the brand name Bisleri Club Soda, and as Parle Exports were not eligible for exemption under Notification 175/86, the users of the brand name were also not eligible for their clearances of these branded goods. Citra : The brand name owner here is Limca Flavours and Fragrances, a small-scale unit which is holding company of Parle Exports Ltd. On the basis of the brand name Citra being owned by a small-scale unit, the users M/s. Brindavan Beverages were permitted to avail the exemption under 175/86 for clearances of Citra. However investigations showed that (1) Limca Flavours and Fragrances were the owners in name only and promotion of the brand name as well as quality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 399020 in Class 32' to M/ s. AMPL , with retrospective effect from the date of the original deed i.e., 17-11-1987. Thus, the assesses claim that the brand name is only 'BISLERI' and not 'BISLERI CLUB SODA' is incorrect inasmuch as, there was no need to execute the correction deed, if their claim was true. In any case, the correction deed cannot be given retrospective effect and will stand assigned to M/s. AMPL only from 27-7-1993. The Commissioner has proceeded on the premise(ii) that M/s. AMPL are the owners of the brand name. This finding is erroneous. The brand name has been assigned to M/s. AMPL and they are the registered users of the same. The ownership of the brand name, however, still rests with M/s. PEL." From the above it is apparrent that the entire order of the Commissioner has been placed before us for determining its legality and propriety and therefore this preliminary objection of the respondents is over-ruled. (c) We find that as regards aerated waters with the brand name "Citra" which belong to another person namely LFFL, the matter is no longer res integra and is covered by two decisions of the Tribunal i.e. 1999 (107) E.L.T. 645 in the case of Shri Gangan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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