Case: Nirlex Spares Pvt. Ltd Vs. Commnr. Of Central Excise

mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th 11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of explanation IX in the said notification. Admittedly, the notification, dated 4th / 11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the field formations.” From a bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification.16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the respondent as they do not apply to the facts of the present case. Let us first take up the decision of this court in the case of Commissioner of C.Ex., Calcutta Vs. Emkay Investments (P) Ltd. [2004(174) E.L.T. 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts. In this case, unlike our case: - a) Merino was registered brand name of Merinoply & Chemicals;b) Merinoply & Chemicals was a large scale manufacturer of the same goods;c) Merinoply & Chemicals never disputed that the brand name ‘Merino’ does not belong to them;d) The intention to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood was there. It is true that in so far as the first point of difference in clause a) is concerned, registration of the brand name is not a pre-requisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration.The learned senior counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy Vs. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned senior counsel for the respondent in Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies [2004(166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being used, which was the registered trade mark of another company. This fact was not disputed. Thus the court held, with which we are in full agreement, that the mere use of additional words in addition to the name of another person would not by itself enable the party to claim the benefit of the Notification. We have already stated that in that decision, admittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case.17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable.18. For the reasons aforesaid, we are not in agreement with the views expressed by the CEGAT and the Commissioner of Central Excise and accordingly, we answer the question posed by us, as noted herein earlier, by holding that the benefit of exemption under the notification in question would be available to the appellant.

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

Explanation:
1[ds]14. That apart, in our view, the nexus between the hexagonal design and the Marketing Company cannot be found when the Marketing Company itself had categorically disowned the title to the said design and admitted that the said design did not belong to them. That being the position, it cannot be held that the appellant was using the brand name of the Marketing Company when the Marketing Company has itself disowned the brand name, more so, since it is unusual that the person who is owning a brand name would come forward to disown the same when such disowning would deprive the said person of a valuable asset. In Commissioner of Central Excise Vs. Bhalla Enterprises [(2005) 8 SCC 308] , this Court, while considering similar provisions of a subsequent notification NO.1/93-CE, in paragraph 6, observed as under:notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with thegoods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to suchnoted hereinabove, we have already indicated that the brand name used on the corrugated boxes would not show any intention of indicating a connection between the goods manufactured by the appellant and the Marketing Company. Again, in Commissioner of Central Excise Vs. Grasim Industries Ltd. [(2005) 4 SCC 194] , this court, while considering similar provisions of the Notification No. 5/98-CE, observed in paragraphs 15 and 16 as under:our view, the Tribunal has completely misdirected itself. The term ‘brand name or tradeis qualified by the words ‘that is toThus, 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 term ‘brand name or tradegets qualified by the words which follow. The words which follow are ‘a name or aThus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the ‘name orsuch as aor aor even a ‘signature of inventedis 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 ‘anyThese words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the wordsis 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 namede 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.16. This court has, in the case of Royal Hatcheries (P) Ltd. V. State of A.P. already held that words to the effect ‘that is toqualify the words which precede them. In this case also the words ‘that is toqualify the words ‘brand name or tradeby 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 wordy writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the otherTarai Foods Ltd. Vs. Commissioner of Central Excise [2006 (198) ELT 323], this court, while considering a similar definition of the expression ‘brandin paragraphs 7 and 9, held as under:The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacturer which when used on a particular product would establish a connection between the product and the manufacturer.Furthermore the definition of the words ‘brandshows that it has to be a nameam etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identity of a person itself. It has to be something else which is appended to the product and which establishes theCommissioner of Central Excise Vs. Superex Industries [2004 (174) ELT 4 ], in the context of the Notification No. 175/86-CE, this court in paragraph 3 held as under:CEGAT has held that the benefit of the Notification would be lost only if the manufacturer affixes the specified goods with a brand name or trade name of the another who is not eligible to the exemption under the notification. It could not be denied that the name Kirloskar is not affixed to the generating sets. CEGAT has held that merely because, in the invoices, the set is passed off as a Kirloskar generating set, the benefit of the Notification would not be lost. We see no infirmity in this reasoning. We, therefore, see no reason to interfere.It is an admitted position that the goods in question were manufactured by the appellant and the Marketing Company was its marketing agent. There is also no dispute that on the packings of the goods, the brand names of the appellantwere clearly and prominently printed. In between these two brand names, the hexagonal shape/design was also printed. Therefore, if the said hexagonal shape/design was also printed as the design of themarketing agent, it could not be taken as a ground to deny the exemption to the appellant under the notification. In this connection, reliance can be placed on a judgment of this court in the case of P&B Pharmaceuticals Pvt. Ltd. Vs. Commissioner of Central Excise [(2003) 3 SCC 599] wherein this court in paragraph 15 held asa perusal of para 7 of Notification No. 175/86-CE, it is clear that the exemption granted by the notification is not applicable to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under the said notification…... It is only when a manufacturer of the specified goods affixes them with a logo-brand name or trade name - of another person who is not eligible for the exemption that he becomes ineligible to avail the benefit under the notification. Use of the logo of the manufacturer by other person, whether an assignorrd party, has no relevance for purposes of para 7. That is not the import of Explanationthis stage, the relevant extracts of the opinion of the Law Ministry, Union of India contained in paragraph 3 of the Circular No. 52/52/94-CX, dated 1/9/1994 issued by the Ministry of Finance (Department of Revenue) may also be reproduced asof the said explanation (Explanation IX to the Notification NO.1/93-C.E.) will show that to satisfy the requirement of brand name or trade name, it is necessary that the trade name must indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication or identity of that person. Unless connection between the trade name and the person with whom that trade name is to be identified can be established, the requirement of brand name or trade name as provided for in the said notification will not be satisfied. It is an admitted case of the department that in respect of locks, the units are making locks bearing the same name or mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th 11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of explanation IX in the said notification. Admittedly, the notification, dated 4th / 11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the fielda bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification.16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the respondent as they do not apply to the facts of the present case. Let us first take up the decision of this court in the case of Commissioner of C.Ex., Calcutta Vs. Emkay Investments (P) Ltd. [2004(174) E.L.T. 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts. In this case, unlike our case:Merino was registered brand name of Merinoply & Chemicals;b) Merinoply & Chemicals was a large scale manufacturer of the same goods;c) Merinoply & Chemicals never disputed that the brand namedoes not belong to them;d) The intention to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood wasis true that in so far as the first point of difference in clause a) is concerned, registration of the brand name is not a pre-requisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration.The learned senior counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy Vs. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned senior counsel for the respondent in Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies [2004(166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being used, which was the registered trade mark of another company. This fact was not disputed. Thus the court held, with which we are in full agreement, that the mere use of additional words in addition to the name of another person would not by itself enable the party to claim the benefit of the Notification. We have already stated that in that decision, admittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case.17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable.18. For the reasons aforesaid, we are not in agreement with the views expressed by the CEGAT and the Commissioner of Central Excise and accordingly, we answer the question posed by us, as noted herein earlier, by holding that the benefit of exemption under the notification in question would be available to the appellant.