M/S. Meghraj Biscuits Industries Ltd vs Commissioner Of Central Excise,U.P

Appellants were engaged in the manufacture of biscuits classifiable under Sub-Heading 1905.11 of the Central Excise Tariff. The biscuits were sold under the brand name "Meghraj". Under show cause notices it was alleged that the appellants herein (assessee) have sold the biscuits under the brand name "Meghraj", which was a registered trade mark of Kay Aar Biscuits (P) Ltd. who was using the said trade mark on manufacture of biscuits themselves, and, therefore, the appellants were not eligible to the benefit of SSI Notification No.1/93-CE dated 28.2.1993 as amended by Notification No.59/94- CE dated 1.3.1994. The above show cause notices were issued by the Department demanding differential duty for the period April 1994 to June 1994 amounting to Rs.3,74,948/- plus short paid duty for the period April 1995 to May 1995 amounting to Rs.92,992. The said demand was based on an agreement detected by the Department. That Agreement was between Madan Verma, Director of a company known as M/s. Kay Aar Biscuits (P) Ltd., Ghaziabad, and M/s. Rich Food Products (P) Ltd., Noida. Under the said Agreement M/s. Kay Aar Biscuits (P) Ltd. was Party No.1. Under the Agreement it was declared that M/s. Kay Aar Biscuits (P) Ltd. was the owner of the registered trade mark "Meghraj". Under the Agreement it was stated that M/s. Kay Aar Biscuits (P) Ltd. was using the aforestated trade mark "Meghraj" for the manufacture of biscuits. Under the Agreement there was a recital under which it was stated that M/s. Rich Food Products (P) Ltd. had put up a Unit for manufacture of wafers in Noida which it sought to manufacture under the brand name "Meghraj". Under the said Agreement M/s. Kay Aar Biscuits (P) Ltd. gave permission to M/s. Rich Food Products Pvt. Ltd. to use its trade mark for the manufacture of wafers alone. The said agreement was valid for three years commencing from 22.11.1989. At this stage, it may be noted that the appellants herein claim to have started manufacture of biscuits in 1991. The biscuits were sold in wrapper mentioning the name of the appellants, "M/s. Meghraj Biscuits Industries Ltd." or "Meghraj". The Appellants claimed that it has been using the wrapper since beginning and since 1991 the use of the trade name or brand name "Meghraj" has never been challenged. The Assistant Commissioner, Ghaziabad, examined the printed wrappers. He came to the conclusion vide his orders that the trade name "Meghraj" was in the form of a logo printed on the wrapper of the biscuits and, therefore, the appellants were not entitled to the benefit of Notification No.1/93-CE dated 28.2.93 as amended by Notification No.59/94 dated 1.3.94. Consequently, the Adjudicating Authority called upon the appellants to pay differential duty for the period April 1994 to June 1994 amounting to Rs.3,74,948 plus short paid duty for the period April 1995 to May 1995 amounting to Rs.92,992.

Aggrieved by the decision of the Adjudicating Authority, the assessee preferred appeals to the Commissioner (A). The said appeals were rejected on the ground that the appellants were using the brand name "Meghraj" of another manufacturer M/s. Kay Aar Biscuits (P) Ltd. on their products (biscuits) and, therefore, they were not entitled to the benefit of exemption under Notification No.1/93-CE, as amended. It was held that the word "Meghraj" was printed on all the printed wrappers and, therefore, it was wrong to say that the appellants were not using the brand name "Meghraj" on its products. In this connection, reliance was placed by the Commissioner (A) on the said Agreement dated 22.11.89. Before the Commissioner (A) the appellants herein contended that they had used the name "M/s. Meghraj Biscuits Industries Ltd." on the wrapper and not on the product and, therefore, they were entitled to exemption. This argument was rejected by the Commissioner (A) saying that the appellants were using the brand name "Meghraj" on their products. According to the Commissioner (A), the appellants used the trade name "Meghraj" in the form of a logo which was printed on the wrapper. Before the Commissioner (A), it was argued in the alternative that the logo belonged to M/s. Kay Aar Biscuits (P) Ltd.; that the same was registered SSI Unit; that M/s. Kay Aar Biscuits (P) Ltd. was lying closed since 1.3.93 and, therefore, the appellants have been using that logo of M/s. Kay Aar Biscuits (P) Ltd. who was eligible for exemption under Notification No.1/93-CE, as amended. This contention was rejected by the Commissioner (A) on the ground that under the Notification No.1/93-CE, as amended, exemption was not available to the specified goods bearing brand name or trade name (registered or not) of another person. Since, the appellants herein had used the trade name "Meghraj" on their products which trade name was owned by M/s. Kay Aar Biscuits (P) Ltd. the appellants were not entitled to the benefit of exemption under Notification No.1/93- CE, as amended. Accordingly, the Commissioner (A) dismissed the appeals. The orders of the Commissioner (A) have been confirmed by Order dated 11.4.2000 passed by CEGAT. Hence, these civil appeals.

In the present case, as stated above M/s. Kay Aar Biscuits (P) Ltd entered into an agreement on 22.11.89 with M/s. Rich Food Products (P) Ltd. Under that Agreement the Director of M/s. Kay Aar Biscuits (P) Ltd. declared that his company was the owner of the registered trade mark "Meghraj". The name of that Director is Madan Verma. He is the Director of the appellants (company) also. Further there is no evidence to show as to whether M/s. Kay Aar Biscuits (P) Ltd. was an "eligible manufacturer". This aspect is important since one of the arguments advanced by the appellants herein before the Commissioner (A) was that the trade mark belonged to M/s. Kay Aar Biscuits (P) Ltd., which was registered SSI Unit lying closed since 1.3.1993. No explanation has been given as to why Madan Verma has not been examined by the appellants. He has not been examined even on the question of alleged transfer of the trade mark in favour of the appellants. In the circumstances, we do not find any merit in this appeal.

Applying the above test to the facts of the present case, Madan Verma is a common Director in the two companies. He has filed an affidavit enclosing the registration certificate dated 30.6.2000. However, in that Affidavit he has not stated as to on what basis, in the Agreement of 23.11.89 signed by him, he had declared that M/s. Kay Aar Biscuits (P) Ltd. is the owner of the registered trade mark "Meghraj". There is no deed of assignment from M/s. Kay Aar Biscuits (P) Ltd. in favour of the appellants herein. The Department has rightly placed reliance on the Agreement of 23.11.89. In the circumstances, the burden was on the assessee (appellants herein) to satisfy the Adjudicating Authority that there was no intention of indicating a connection with the goods of the assessee and such other person.

Unquestionably, the applicant's user was not large, but that fact makes no difference, because so far as this country is concerned, the mark was a new mark in respect of the class of goods in respect of which the applicant used it. We therefore, hold that the applicant is the proprietor of that mark."

For the aforestated reasons, we do not find any merit in these civil appeals. Before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case. Our judgment is confined only to the period in question under the impugned show cause notices.

Accordingly, the civil appeals stand dismissed with no order as to costs.