Case: Commnr. Of Central Excise, Raipur Vs. M/S. Hira Cement

had been using the premises belonging to the Respondent as also the telephones which are installed therein or had been selling cement from it, the same by itself cannot be a ground for holding that the Respondent had been using the brand name of the said Hira Industries Limited. It was submitted that in fact the said Hira Industries Limited had been purchasing cement from the Respondent. 19. The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly. [See Tata Iron and Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 and Government of India & Ors. v. Indian Tobacco Association, 2005 (6) SCALE 683 ]. 20. In Commissioner of C. Ex., Trichy v. Rukmani Pakkwell Traders [2004 (165) ELT 481 : (2004) 11 SCC 801 ], the expression "such brand name" was considered holding: "7. The Tribunal had also held that under the Notification the use must be of "such brand name". The Tribunal has held that the words "such brand name" shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not) that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words "ARR" with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." 21. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies [2004 (166) ELT 23 ], the same view was reiterated. The views expressed therein have also been reiterated in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Another (supra). 22. The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another. The learned Commissioner or the learned Tribunal, as noticed supra, did not have the occasion to consider the question in the light of the aforementioned decisions of this Court. 23. Emkay Investment (supra) which was the basis for the decision of the Commissioner has expressly been overruled by this Court. The cross- objections filed by the Respondent, herein before the Tribunal also had not specifically been adverted to as the matter relating to maintainability of the appeal preferred by the Appellant, herein before the Tribunal does not appear to have been discussed nor any reference thereto has been made in the concluding paragraph of the judgment. 24. Before us, the parties have placed the entire facts. We may also place on record that it has been conceded before us by the learned counsel appearing on behalf of the Respondent that the earlier order dated 26.9.2001 shall not operate as a res-judicata but, as noticed hereinbefore, the only contention raised was that once the Revenue accepts a judgment, it cannot raise the said question once again. 25. Although some decisions to this effect have been cited by Mr. Santhanan, we are of the opinion that the matter should be considered afresh by the Tribunal upon considering all aspects of the matter. We refrain ourselves from going into the said question. We may, however, notice that a Bench of this Court in Government of W.B. v. Tarun K. Roy and Others, [(2004) 1 SCC 347] stated: "Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar1 by holding: "4. Shri B.B. Singh, the learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question."" 26. As we intend to remit the matter back to the Tribunal, we should not make any observation at this juncture which would affect the merit of the matter one way or the other. We may also be misunderstood. Suffice it to say that having regard to the definition of the brand name as contained in Explanation IX to the notification dated 28.2.1993, the matter requires fresh consideration by the Tribunal upon taking into consideration the fact of the matter. If, however, the Tribunal comes to the conclusion or is of the opinion that further investigation in facts may be necessary, it may pass such order or orders as it may think fit and proper. 27.

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

Explanation:
1[ds]The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly.The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another.