Case: Commnr.Of Cent.Excise,Calcutta Vs. M/S.Emkay Investments (P)Ltd

2. Briefly stated, the facts of the case are as under:TheEmkay Investments Private Limited and M/s. Plyking who are engaged in the manufacture of plywood classifiable under4408.90 of the Schedule Act, 1985. The said factory was visited by the Central Excise Officers who found that the respondents are also using the brand/logoMERINO along with the brand nameon the plywood being manufactured by them and the officers of the Department entertained a view that as the logo of MERINO is also being shown on the plywood being manufactured by them, apart from their own logo of Pelican and as the owner of the brand MERINO i.e. M/s. Merinoply and Chemicals Ltd., is a large scale manufacturer of plywood not entitled to the benefit of small scale exemption Notification No.dated 1.3.1986, as amended, the respondents were also not entitled to the benefit of the said exemption Notification in view of clause 7 of the same. The second respondentM/s. Plyking is one of the traders from whose premises plywood was seized by the officers of the Central Excise.3. On adjudication, the Commissioner of Central Excise, Calcutta vide his impugned order held that the logo indicating MERINO in a specific manner was the brand name by M/s. Merinoply and Chemicals Ltd. who were not eligible for the grant of benefit of Notification No.and as such denied the benefit to the first respondent firm and accordingly confiscated the seized plywood. The officers also confiscated 223 pieces of plywood from the business premises of M/s. Plykingthe second respondent herein. The respondents as appellants contended before the authorities that though the word MERINO is written in the same style as written on the plywood manufactured by M/s. Merinoply and Chemicals Ltd., nevertheless the same will not imply any relation of goods by the respondents under the brand name of MERINO. They also submitted that the brand name of M/s. Merinoply and Chemicals Ltd. is FUFFPLY and MERINO.4. The Departmental representatives countered the arguments of the respondents by arguing that MERINO is the brand name and logo registered and owned by M/s. Merinoply and the affixation of the same on the product would disentitle the respondents firms from the benefit of Notification in terms of clause 7 read with Explanation VIII as M/s. Merinoply and Chemicals Ltd. being a large scale unit, are not entitled to the exemption Notification No.clause 7 would be attracted and the respondents firms would become ineligible for exemption.5. The Commissioner of Central Excise by his order dated 31.3.1992 ordered confiscation of seized goods. The respondents herein filed appeals before the CEGAT against the order of the Commissioner. The CEGAT, by the impugned order, allowed the appeal fled by the respondents herein. Aggrieved by the said order, the appellants preferred these two appeals.

Reasoning: 15. The impugned goods admittedly contained a registered logo MERINO belonging to and owned by M/s. Merinoply and Chemicals Ltd. Thus it was a clear case where the impugned goods were admittedly affixed with registered logo/trade mark of other person not eligible to S.S.I. exemption.16. We have gone through the common order passed by the Tribunal. In our view, the Tribunal has erred in not appreciating that to attract provision of clause 7 of Notification No.it is sufficient that product contained a trade mark / logo of another ineligible person which was fully satisfied in the instant case and whether the product also contained the brand name/trade name /logo of the manufacturer would not and cannot alter such position. Likewise, the interpretation of Explanation VIII as advanced by the Tribunal does not appear to be correct in law and in fact. It was imperative that by using the registered logo MERINO belonging to M/s. Merinoply and Chemicals Ltd. on their own product M/s. Emkay Investment Ltd. fulfilled the purpose of indicating a relation between the said products and the logo owner so as to influence the trade and therefore, the provision of Explanation VIII were fully satisfied so far as the case on hand was concerned. The finding of the Tribunal to the contrary, in our opinion, is wrong and liable to be set aside.In our opinion, the judgment of the Tribunal is wrong and against the ratio laid down in the cases referred to infra. In the case of Commissioner of Central Excise, Trichy vs. Rukmani Pakkwell Traders (supra), the respondents purchased the scented supari in bulk from M/s. ARR Nutcon Products. The scented supari is marked under the brand name of ARR with a photograph of Shri A.R. Ramaswamy, the founder of ARR group of Companies. The respondents claimed benefit of Notification No.dated 28.2.1993. The said Notification grants exemption, amongst others, to scented supari. Clause 4 of the Notification provides that the exemption contained in the Notification shall not apply to specified goods bearing a brand name or trade name of another person. The respondents were issued show cause notice that their goods are not exempted under the said Notification. The Assistant Collector confirmed the demand on the ground that they were not eligible to get exemption under the Notification. The appeal filed by the respondent was also dismissed by the Commissioner (Appeals).Astra Pharmaceuticals (P) Ltd. vs. Collector of Central Excise, Chandigarh (supra). This judgment will not be of any assistance to the case on hand. It is distinguishable on facts and on law. Since it does not apply to the case on hand, we are not inclined to consider the same.Accordingly the High Court allowed the appeals and set aside the order of the learned single Judge.