TMI Blog2010 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... any; but also the quality of their product as that of a product of Tata Company, as they were supplying their goods to the said company. Thus, the bar created in Clause 4 read with Explanation IX of the Notification is clearly attracted in the present case, disentitling the assessee from the benefit of the exemption notifications under consideration. We are of the opinion that the decision of the Tribunal is clearly erroneous and deserves to be set aside. - 3051 of 2003 - - - Dated:- 16-12-2010 - D.K. Jain and H.L. Dattu, JJ JUDGMENT D.K. Jain, J 1. The present civil appeal, filed under Section 35(L)(b) of the Central Excise Act, 1944 (for short "the Act") by the Revenue, is directed against order dated 10th October, 2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short "the Tribunal") wherein it has been held that the respondent was entitled to the benefit of Notifications Nos. 1/93-CE and 16/97-CE. 2. Shorn of unnecessary details, the facts material for the adjudication of the present appeal may be stated as under: The respondent (hereinafter referred to as "the assessee"), a small scale industrial unit (for short "SSI"), is engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the cover assembly was branded with the TATA logo which did not belong to the party, and no evidence was produced that the TATA group of companies was themselves eligible for the excise exemption, benefit of notification 1/93 and 16/97 cannot be extended to these products manufactured by the party but carrying the TATA brand name or logo." 5. Being aggrieved, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals). The Commissioner (Appeals), vide order dated 10th February, 2002, allowed the appeal, observing thus: "5.4 Thus, we find that the appellate bodies are treating any slight variation in the brand names as different entities as in "Mahaan" and "Mahaan Tastemaker" or "AGI" and "AGI Switches". Here, the two conflicting brand names are "TATA" and "TATA ACE" and the sole reason for this usage of the name "TATA" is that it stands earmarked for a particular vehicle. They are also manufacturing auto parts for use in the other vehicles of different manufacturers for which they do not use this logo. 5.5. In the light of the above decisions of the Hon'ble CEGAT, I have no alternative but to follow the judicial precedent. I thus hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, and the said finding of fact deserves to be affirmed as it has not been specifically challenged by the Revenue. Learned counsel argued that in the present case the pre-requisite for invoking paragraph 4 of Notification No. 1/93 is not satisfied in as much as the Revenue has not been able to establish that the brand name "TATA ACE" belongs to another person. In support of the submission that the burden to prove that the brand name belongs to another person is on the Revenue, learned counsel placed reliance upon the decision of this Court in Commissioner of Trade Tax, U.P. and Anr. vs. Kajaria Ceramics Ltd. [(2005) 11 SCC 149]. Commending us to the decision of this Court in Pappu Sweets and Biscuits and Anr. vs. Commissioner of Trade Tax, U.P., Lucknow [(1998) 7 SCC 228], learned counsel argued that paragraph 4 of Notification No.1/93 being an exclusionary clause, the same has to be strictly construed. Learned counsel contended that since both the Tribunal as also the Commissioner (Appeals) have concluded that the use of the word "TATA" was merely to denote that the product was meant for use in a particular vehicle, the affixation of "TATA" was merely descriptive of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 1/93-CE, and also provides that the exemption contained therein shall not be available to goods bearing the brand name of another person. 11. It is manifest from a bare reading of Clause 4 of the Notification, read with Explanation IX that it clearly debars an assessee from the benefit of exemption under the notification, if he uses another person's brand or trade name with the intention of indicating a connection between the assessee's goods and such other person. It is evident that the object of the exemption notification is to grant benefits only to those industries which otherwise do not have the advantage of brand or trade name. (See: Commissioner of Central Excise, Chandigarh-II vs. Bhalla Enterprises [(2005) 8 SCC 308] ; Nirlex Spares (P) Ltd. (supra); Commissioner of Central Excise, Raipur vs. Hira Cement [(2006) 2 SCC 439].) 12. In Kohinoor Elastics (P) Ltd. vs. Commissioner of Central Excise, Indore [(2005) 7 SCC 528], while construing an identical notification (No.1 of 1993-CE), dated 28th February 1993, this Court had observed that: "Clause 4 of the notification is unambiguous and clear. It specifically states that the exemption contained in the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. of course this being a notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard-and-fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect." (Emphasis supplied by us) 14. Therefore, in order to avail of the benefit of the exemption notification, the assessee must establish that his product is not associated with some other person. To put it differently, if it is shown that the assessee has affixed the brand name of another person on his goods with the intention of indicating a connection between the assessee's goods and the goods of another person, using such name or mark, then the assessee would not be entitled to the benefit of exemption notification. We may hasten to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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