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2020 (2) TMI 1380 - AT - Central ExciseLevy of Excise Duty - affixation of Brand name or not - Commissioner, in the order impugned before the Tribunal observed that mere embossing of initials of the raw material supplier cannot be equated with affixing of a brand name and, therefore, concluded that no duty could be imposed as it could not be said that brand name had been indelibly fixed - HELD THAT:- Heading 7113 contained in Chapter 71 of Central Excise Tariff deals with articles of jewellery and parts thereof, of precious metal or of metal clad with precious metal. Under the sub-headings of Heading 7113, the rate of duty prescribed is 14%. However, the notification dated 1 March, 2005 reduces the rate of duty under Heading 7113 to 2% for articles of jewellery on which brand name or trade name is indelibly affixed or embossed on the articles of jewellery itself. ‘Brand name or trade name’ has been defined in the Explanation to mean, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person. The Circular dated 4 March, 2005 issued by C.B.E. & C., after referring to the speech of the Finance Minister that excise duty of 2% would be levied on branded jewellery only, clarified that for attracting excise duty, the article of jewellery must be marketed and sold under a brand name. Three illustrations have also been given in the said Circular dated 4 March, 2005. The first illustration is of a case where a jeweller “ABC Jewellers” gets his articles of jewellery from job workers who put a mark/sign/initials on the article of jewellery. This is only to identify that the article of jewellery was received from a particular goldsmith and, therefore, would not be a branded jewellery. The second illustration is of “ABC Jewellers”, while selling articles of jewellery to customers, puts a distinctive sign/mark/initials on the jewellery. This again was said to be for the purpose of identification so that when the jewellery is returned to ABC Jewellers, it can recognize the jewellery as its own. In such a case also, jewellery is not sold under a brand name and will not attract duty. The third illustration is when “ABC Jewellers” advertises and sells its products under a brand name “Star”. It, therefore, clearly transpires that excise duty of 2% can be levied only on articles of jewellery on which brand name or trade name is indelibly affixed or embossed on the articles of jewellery. ‘Brand name’ or ‘trade name’ has been clearly explained in the Notification dated 1 March, 2005 and the Circular dated 4 March, 2005 issued by the C.B.E. & C. Each case would, therefore, have to be examined on its own facts to determine whether a particular name or mark or symbol that is affixed or embossed on the article of jewellery is a brand name or not. What has to be seen in each case is whether the brand name or trade name, which could be a mark used in relation to the product, indicates a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identify of that person. The papers may, therefore, be placed before the Division Bench concerned with the aforesaid opinion of the Larger Bench for deciding the appeals on merit.
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