TMI Blog2001 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... i Uday Joshi, learned Advocate along with S/Shri Jitendra Singh and Sandeep Chokshy, learned Advocates, submitted that the Appellants manufacture Riderless Steel Healds and Flat Steel Healds under their own brand name called 'INTATEX' and 'INTACO' respectively, being affixed/printed in corrugated boxes along with hexagonal artistical design (alleged monogram) belonging to the marketing company M/s. LMS Marketing Pvt. Ltd.; that this alleged Monogram was used only from 1-4-1990; that the goods manufactured by them were, however, not affixed with any brand name; that only the corrugated boxes in which the impugned goods were packed were printed with the artistical design; that prior to 1-4-1990, the Appellants were placing orders for simple c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uaral design with 5 squares therein and expression "LMS" written thereunder appearing on all documents from the date of inception of the marketing company could be treated as a trade mark or symbol belonging to it, at the best. He also emphasised that as the design was not affixed on the goods manufactured by them, mischief of Para 7 of Notification No. 175/86 will not be attracted. He relied upon the decision in DCI Pharmaceuticals (P) Ltd. v. C.C.E., Goa, 1999 (112) E.L.T. 222 (T); Palsons Drugs Chemicals Industries v. C.C.E., Calcutta-I, 1998 (98) E.L.T. 665 (T); Srinisan Cables (P) Ltd. v. C.C.E., Hyderabad, 1999 (32) RLT 418 (CEGAT) and C.C.E., Madras v. Technical Engineering Products Co., 1999 (106) E.L.T. 535 (T) wherein it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent on the part of the Appellants to evade payment of duty. 5.Countering the arugments, Shri R.C. Sankhla, learned DR, reiterated the findings as contained in the impugned Order and emphasised that Surendra L. Shah, Director, in his statement dated 11/12-1-1993 did not answer the question as to why the Hexagonal design was printed on the visiting cards and why the three concerns were using the same. He relied upon the decision of the Larger Bench in the case of Namtech Systems Ltd. v. C.C.E., New Delhi, 2000 (115) E.L.T. 238 (T) wherein it was held that benefit of Notification No. 175/86 was not available if the goods were affixed with the brand name or trade name of a trader who is not a manufacturer. He also submitted that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packed in corrugated boxes which were admittedly printed with the Hexagonal design. As the impugned goods were sold in the corrugated boxes which bear the Hexagonal design, it cannot be said that the goods are not affixed with the brand name merely because the said design does not appear on the goods itself. If this view is accepted, a very large number of products, particularly medicaments, will become non branded. As the goods in the present matter are packed and marketed in corrugated boxes affixed with Hexagonal design, it is to be held that the goods were affixed with brand name. All the decisions relied upon by the learned Advocate are not applicable in the present matter. In Technical Engineering Products case, the pouch which bears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting card of different persons. I, therefore, hold that it is a brand/trade name following within the definition given in Explanation VIII of the Notification No. 175/86-C.E. as amended. The visiting cards containing address and name of the marketing company were printed with the said monogram and there is therefore no reason to believe that the said brand name did not belong to the marketing company. It is also not believable that the marketing company cannot have different brands." 8.Further, as emphasised by the learned DR, Shri Surendra L. Shah did not answer the query as to why the Hexagonal design was printed on the visiting card. We do not find any substance in the submissions of the learned Advocate that as the said design was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with new products; Marketing Company looks after the sales promotion activities and incurs expenses towards advertisement; there are several financial transactions between the Marketing Company and the Appellants; the office expenses of the Appellant company are borne by the Marketing company. On the basis of more or less the same facts, Tribunal held in Narendra Machine Works case, Final Order No. 15/2001-B, dated 11-1-2001 that "All these facts together will lead to only one conclusion that there is mutuality of interest between the two units and as held by the Supreme Court in Calcutta Chromotype Ltd., 1998 (99) E.L.T. 202 (S.C.) the corporate veil can be lifted. The person behind manufacturer and buyer are same and the financial flow b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
