Case: Commnr. Of Central Excise, Mumbai Vs. M/S. Kalvert Foods India Pvt. Ltd.

counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phrase “New Improved Quick Frozen French Fries” was not held to be a brand name, and therefore, according to him the brand name of the respondent company “Kalvert” being a “House Name” could not be termed as “Brand Name”. 32. In our considered opinion, the aforesaid brand name “New Improved Quick Frozen French Fries” is a descriptive word and the same could not have been termed and coined either as a “house name” or a “brand name” under any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope of “Brand name” and distinction between `House mark and “Product mark/Brand name” has been brought out. It was stated therein by this Court that “House mark” which is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In paragraph 6 of the said Judgment, Narayanans Book on Trade Marks and Passing-Off was also referred to and since the same may have a bearing to the facts of the present case, it is extracted herein below: “677A. House mark and Product mark (or Brand name).In the pharmaceutical business a distinction is made between a House mark and a Product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the Product mark and House mark will appear side by side on all the labels, cartons etc. Goods are ordered only by the product mark or Brand name. The House mark serves as an emblem of the manufacturer projecting the image of the manufacturer generally.” 33. In the book of “Trade Marks” by Sarkar, the distinction between the expressions “House mark” and “Product mark” or “Brand name” has been clearly brought out by way of reference to the decision in Astra Pharmaceutical Pvt. Ltd. (supra). It is stated therein that “House mark” is used on all the products of the manufacturer and that it is usually a device or a form of emblem of words or both. It was also pointed out that for each product a separate mark known as a “Product mark” or “Brand name” is used which is invariably a word or combination of word and letter or numeral by which the product is identified and asked for. It was also stated that in respect of all products both the “Product mark” and “Brand name” would appear side by side on all the labels, cartons etc. and that the “House mark” is used generally as an emblem of the manufacturer projecting the image of the manufacturer, whereas “Brand name” is a name or trade mark either unregistered or registered under the Act. 34. Therefore, it is not necessary that “Brand name” should be compulsorily registered. A person can carry on his trade by using a “Brand name” which is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e. “House mark” and “Brand name” and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning. 36. In the book of “Law of Trade Marks” by K.C. Kailasam and Ramu Vedaraman the distinction between `Product mark and `House mark has been beautifully delineated, which is as under: “It is possible that the proprietor may use several trade marks in respect of his goods (known as Product mark), besides using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark). This practice is more predominant in the pharmaceutical trade. Though both are trade marks and are registrable as such, each has its own distinct function. While the House mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement.” 37. In view of above discussion, it is clear that what was being used by the respondent under the expression “Kalvert” was a “Brand name” and not a “House mark” as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand name “Kalvert” were liable to be charged for excise duty at the rate prescribed in the Excise Law. 38. The Tribunal committed manifest error in coming to its conclusion and therefore the order passed by the Tribunal is set aside and the order dated 27.02.2002 passed by the Commissioner of Central Excise, Mumbai is restored.

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

Explanation:
1[ds]18. During the course of arguments learned counsel appearing for the respondent submitted before us that although the aforesaid statements of Managing Director of the Company and other persons were recorded during the course of judicial proceedings but the same were retracted statements, and therefore, they cannot be relied upon. However, the statements were recorded by the Central Excise Officers and they were not police officers.Therefore, such statements made by the Managing Director of the Company and other persons containing all the details about the functioning of the company which could be made only with personal knowledge of the respondents and therefore could not have been obtained through coercion or duress or through dictation. We see no reason why the aforesaid statements made in the circumstances of the case should not be considered, looked into and relied upon.19. We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides, the Managing Director of the Company on his own volition deposited the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstance of the present case, the aforesaid statement of the counsel for the respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress.20. During the course of arguments our attention was also drawn to the statement of Managing Director of the Company where he had admitted the fact of clandestine clearance of excisable goods and therefore has voluntarily come forward to sort out the issue and to pay the Central Excise duty liability and that he has paid Central Excise duty voluntarily under TR6 Challans totaling to Rs. 11,00,000/- on various dates. Similarly statement of Miss Vinita M. Khanolkar - proprietor of RTC was also recorded under Section 14 of the Central Excise Act, 1944 along with Shri Shekhar Mogaviera - Production Supervisor of M/s. Kalvert Foods India Pvt. Ltd. Statements of various other persons were also recorded under Section 14 of the Central Excise Act.In view of the aforesaid position and since there was clandestine removal of excisable goods, the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. In the present case therefore the extended period of limitation would be available as there was suppression of facts by the respondents with the intention to evade the central excise duty inasmuch as they did not account for the manufactured goods in the prescribed record.In our considered opinion, the aforesaid findings are also totally wrong and recorded in violation of the law of Trade Marks. During the course of arguments, our attention was drawn to a Judgment of this Court in the case of TARAI FOOD LTD. V. COMMISSIONER OF CENTRAL EXCISE, MEERUT-II, reported in 2007(8) S.T.R. 442 (S.C.). While placing reliance on the said Judgment, the counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phraseImproved Quick Frozen Frenchwas not held to be a brand name, and therefore, according to him the brand name of the respondent companycould not be termed as. In our considered opinion, the aforesaid brand named Quick Frozen Frenchis a descriptive word and the same could not have been termed and coined either as aor aer any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope ofnd distinction between `House mark andhas been brought out. It was stated therein by this Court thatch is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a wordTherefore, it is not necessary thatld be compulsorily registered. A person can carry on his trade by using ach is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e.and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning.In view of above discussion, it is clear that what was being used by the respondent under the expressionand not aas sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand namewere liable to be charged for excise duty at the rate prescribed in the Excise Law.