Case: Comnr. Of Central Excise, Trichy Vs. Grasim Industries Ltd

the position, the arguments of the learned DR cannot be accepted. .........." 16. 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 writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "write" and "Writing" is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally 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. 17. This Court has, in the case of Royal Hatcheries Pvt. Ltd. vs. 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 the product and the other person/company. It is thus clear that the Tribunals decision in Nippa Chemicals (Pvt.) Ltd.s case is clearly erroneous and will stand overruled. In the case of Collector of Central Excise, Goa vs. Christine Hoden (I) Pvt. Ltd. reported in 1999 (113) ELT 591 the question was whether the use of the word "comfit" with the name "Christine Hoden London, Rome Stockholm" would disentitle the Respondents therein from the benefit of the Notification. It was however found, as a matter of fact, that the word "comfit" was owned by the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment as follows: "Mere indication of the foreign companys name does not create any association in the course of trade between the goods and the foreign company." 18. There would be no purpose in indicating the foreign companys 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. 19. In the case of Commissioner of Central Excise, Hyderabad vs. Sarat Electronics reported in 2004 (167) ELT 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 Pvt. Ltd. The expression "A quality product from ITL group" also would not mean that the product was manufactured by Instrument Techniques Pvt. Ltd. According to us, the facts of the case are more akin to the facts in Weigand India (P) Ltd. and Chemguard Coatings Pvt. Ltd. rather than Chopra Appliances." 20. In our view, the Tribunal was clearly erroneous. As indicated above, the Explanation makes it clear that it need not be a trade name or brand name as commonly 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. 21.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We find some substance in thisis 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 patently erroneous view. It becomes necessary for this Court to clarify the law so that the erroneous Judgments of the Tribunal do not remain binding precedents.11. The Judgments of the Tribunal appear to be based upon the Judgment of this Court in Astra Pharmaceuticals Ltd. case (supra). Even in the impugned Judgment Astra Pharmaceuticals Ltd.s case has been relied upon. In our view, the Tribunal is misconstruing and misunderstanding the Judgment of this Court in Astra Pharmaceuticals Ltd.s case.This Court has, in the case of Royal Hatcheries Pvt. Ltd. vs. 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 the product and the other person/company. It is thus clear that the Tribunals decision in Nippa Chemicals (Pvt.) Ltd.s case is clearly erroneous and will stand overruled. In the case of Collector of Central Excise, Goa vs. Christine Hoden (I) Pvt. Ltd. reported in 1999 (113) ELT 591 the question was whether the use of the word "comfit" with the name "Christine Hoden London, Rome Stockholm" would disentitle the Respondents therein from the benefit of the Notification. It was however found, as a matter of fact, that the word "comfit" was owned by the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment asindication of the foreign companys 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 companys name in relation to the product except to indicate a connection between the product and the foreign company. Therefore, to this extent, theIn the case of Commissioner of Central Excise, Hyderabad vs. Sarat Electronics reported in 2004 (167) ELT 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 Pvt. Ltd. The expression "A quality product from ITL group" also would not mean that the product was manufactured by Instrument Techniques Pvt. Ltd. According to us, the facts of the case are more akin to the facts in Weigand India (P) Ltd. and Chemguard Coatings Pvt. Ltd. rather than Chopra Appliances.In our view, the Tribunal was clearly erroneous. As indicated above, the Explanation makes it clear that it need not be a trade name or brand name as commonly 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.6. 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 writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "write" and "Writing" is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally 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.