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2013 (1) TMI 330 - SC - Central ExciseS.S.I. Notification No. 1/93-C.E. dated 28th February, 1993 - Whether the manufacture and sale of specified goods not physically bearing a brand name from branded sale outlets would disentitle an assessee from the benefit of SSI Notification - Held that:- A brand/ trade name must not be reduced to a label or sticker that is affixed on a good. The test of whether the good is branded or unbranded, must not be the physical presence of the brand name on the good, but as Explanation IX reads, “is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person.” Therefore, whether the brand name appears in entirety or in parts or does not appear at all cannot be the chief criterion, primary focus has to be on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. See Commissioner of Central Excise, Trichy Vs. Rukmani Pakkwell Traders [2004 (2) TMI 69 - SUPREME COURT OF INDIA] & Commissioner of Central Excise, Chandigarh-I, Vs. Mahaan Dairies[2004 (2) TMI 73 - SUPREME COURT OF INDIA] wherein held that once it is established that a specified good is a branded good, whether it is sold without any trade name on it, or by another manufacturer, it does not cease to be a branded good of the first manufacturer. The good will continue to be a branded good of the company that manufactured it. In case of goods sold from exclusive single brand retail outlets or restaurants or stores, the fact that a good is sold from such a store ought to be a relevant fact in construing if the good is its branded good or not. In the case of such goods, perhaps a rebuttable presumption arises in favour of such goods being branded goods of the specified store. Such a presumption can be rebutted if it is shown that the specified good being sold is in fact a branded good of another manufacturer. However, all other goods, sold without any appearance of a brand or trade name on them, would not be deemed unbranded goods to the contrary, they may be deemed to be branded goods of that outlet unless a different brand or trade name appears. Hence, it is not necessary for goods to be stamped with a trade or brand name to be considered as branded goods under the SSI notification. Applying the said principles on the facts at hand, failure to see how the same branded cookies, sold in containers, can transform to become unbranded ones, when sold from the same counter, or even from an adjoining counter, without packaging carrying the brand name. Admittedly, on the same cookies, physically bearing brand “Cookie Man” sold in containers carrying brand name duty is paid. Once established that the environment of the goods can be gone into to construe if it is branded or not, no reason to see why the environment of the goods should be limited to the plates and tissues, on which they are served. Thus as the cookies were sold from a dedicated outlet of “Cookie Man” where no other products but those of the assessee were sold. The invoices carry the name of the company and the cookies were sold from a counter of the store, the store’s decision to sell some cookies without containers that are stamped with its brand or trade name does not change the brand of the cookies. As convinced that the cookies sold even without inscription of the brand name, indicate a clear connection with the brand name, in the course of assessee’s business of manufacture and sale of cookies under the brand name “Cookie Man”. They continue to be branded cookies of “Cookie Man” and hence cannot claim exemption under the SSI Notification.
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