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2015 (6) TMI 155 - SC - Central ExciseBenefit of exemption/concessional rate of duty under Notification No.175/86-CE dated 1.3.1986 - Exemption or concessional rate of excise duty to the SSI units - Use of third party brand name - Held that:- Benefit of exemption would not apply to the specified goods where a manufacturer affixes the specified goods with brand name or trade name (registered or not) of another person who is not eligible for grant of exemption under this Notification. As per this, in order to deny the exemption under this Notification, the Department has to show that on the goods which are manufactured by the manufacturer i.e. the SSI, the brand under or trade name of another person is affixed and that another person is not eligible for grant of exemption in this Notification. In other words, when that other person whose brand name or trade name is used by the SSI is not itself a SSI, then the user is not entitled to exemption under the said Notification. On the packing of goods, brand names of the assessee “INTATEX” and “INTACO” were clearly and prominently printed. In between these two brand names, a hexagonal shape/design, which was claimed by the Department to be the brand of the Marketing Company, was also printed. In this backdrop, the question was as to whether the assessee company was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on record to show that the said hexagonal shape/design belonged to or was owned by the Marketing Company and thus they had permitted the assessee to use the same on the corrugated boxes. The Court also found that the hexagonal design/shape could not be said to be descriptive enough to serve as an indicator of nexus between the goods of the assessee and the Marketing Company. On this basis, it was concluded that the alleged monogram could not be the brand name or trade name of the Marketing Company. Matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Matter remanded back - Decided in favour of revenue
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