TMI Blog1992 (2) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ve engaged the services of a marketing firm M/s. Synthiko Formulations, Bombay. As they were their sole selling and marketing agent and for easy identification, their company s name Synthico was printed on the labels. This mention of the word Synthico on the labels does not attract Notification No. 223/87 dated 22-9-1987. The learned Collector held that the affixing on goods with the brand name or trade name, whether registered or not of another person, would disentitle them from the eligibility of the Notification No. 175/86 dated 1-3-1986. The findings of the learned Collector are reproduced below - I have carefully examined the impugned order, the appeal and the respondents contention. It is a fact that the Brand name Synthico has been used by the appellant and this brand name is also being used by M/s. Synthiko Formulations Pvt. Ltd., Bombay who are marketing this product manufactured by the respondent. It is also a fact that Notification No. 175/86 lays down that the exemption shall not apply whether the manufacturer affixes his goods with the brand name or trade name, whether registered or not; of another person who is not eligible for the said exemption. The reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affixed with a brand name or trade name (registered or not) of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader. Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which 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 the said goods and some person using such name or mark with or without any indication of the identity of that person". 5. The appellants are manufacturers of medicines and a tablet having name of Brosmin . On the labels, name of the marketing agency namely M/s. Synthiko Formulations is printed. Just above this is printed Synthico . This word Synthico is encircled with a line. The Collector has considered this word Synthico placed in a circle to be a particular mark or brand name for the tablet Brosmin and has held that as Synthico is owned by the marketing agency namely M/s. Synthiko Formulations Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such goods for the purpose of indicating or so as to indicate in the course of trade between the goods and the person using the name or mark with word without any indication of the identity of that person. 7. The Revenue has not shown that the appellants are trading their goods in the brand name or trade name of Synthico . The appellants are trading the medicine in the name of Brosmin tablet . Therefore, the contention of the lower authorities that the word Synthico is a trade name or brand name is not correct. 8. In Collector of Central Excise v. Bengal Chemicals Pharmaceutical [1989 (43) E.L.T. 591 (Tri.) = 1989 (25) ECR 235], it has been held in para 8 as follows - Even applying the alternative criterion, we do not think the legend Bengal Chemicals is sufficient to attract the mischief of the second criterion referred to above specially considering that the names of the medicines are specified in pharmacopoeia. The legend only shows that the medicines are manufactured by the respondents. It does not constitute a brand name or mark used in relation to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that explanation by virtue of the user of such symbol can be taken to confer a proprietary right on the petitioner in the medicines. It cannot be disputed that the petitioner has been using this symbol, a flame inside which the words India French occur, in respect of all the articles manufactured by it. It is seen that even in the letter head, the petitioner has been using this mark. Therefore, it is not a distinctive mark given by the petitioner to the three medicines referred to above. But it is a mark which is generally given to all labels in its letter dated 11-12-1967, the petitioner has categorically stated that this mark is being used in respect of all the articles manufactured by it. 9. A reading of the above para clearly supports the findings given by us. The appellants are entitled to succeed in this appeal and the same is allowed with consequential relief. Sd/- (S.L. PEERAN) Member (Judicial) 10. [Order per : P.C. Jain, Member (T)]. - I have gone through the order proposed by my learned brother Shri S.L. Peeran. However, I regret I am unable to persuade myself to agree with the proposed order. 11. Some more relevant facts are put on record as below :- 11.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that person. (iv) That word SYNTHIKO in stylised script, bound by a rectangle, in the strips, or medicines, manufactured by the Assessee is brand name/trade name, used by M/s. Synthiko Formulations Pvt. Ltd., Bombay, and the said trade name/brand name Synthiko bound by a rectangle is also used by following sister organisations of the said M/s. Synthiko Formulations. (1) M/s. Synthiko Industries, C-1/62 Mauji Valiv Village, Bassein (Vassi) Distt. Thane - a manufacturer of P or P medicines. (2). M/s. Synthiko Foils Ltd., Jay House, 13/14, Andheri-Kurle Road, Bombay. (3) M/s. Synthiko Organic Pvt. Ltd. Falna. - a manufacturer of P or P medicines. (v) That assessee manufactures medicines and affixes the trade name/brand name, Synthiko , belonging to Company, which is the exclusive purchaser of the said goods. (vi) That M/s. Synthiko Formulations Pvt. Ltd. are not eligible for the grant of exemption under the said Notification No. 175/86 dated 1-3-1986 as amended. (vii) That word Synthiko bound by a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would not be applicable to the goods where a manufacturer affixes the specified goods with brand name or trade name of another person who is not eligible for grant of exemption under the said Notification No. 175/86. The question that falls for consideration now is whether by use of the word Synthiko in a stylised manner and enclosed in a rectangle is a brand name or the trade name of another person. What is brand name or trade name has also been defined by Explanation VIII given in the said notification itself. It states that brand name means a brand name or trade name, whether registered or not, that is to say a name or a mark such as monogram, label, signature or invented word or writing which 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 that person [Emphasis supplied]. It has already been brought on record by the Collector of Central Excise, Jaipur in his order-in-review that Synthiko written in a stylised manner and bound by a rectangle is the trade name/brand name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm person to one who is a manufacturer of excisable goods; there is no reason to cut down the scope of the word person to the above extent. The golden rule of construction is that the words in a statute should be given their ordinary meaning. The word person in its ordinary connotation would include any person whether he is a manufacturer or a non-manufacturer . The only condition which qualifies the term person in para 7 of the notification is that he should not be eligible for the grant of exemption under this notification. A non-manufacturer i.e. a trader having a brand name or trade name in respect of goods with a huge turn-over far exceeding the exemption limit and getting his goods manufactured from small scale manufacturers would be at the same pedestal as a manufacturer of specified excisable goods would be who is not eligible for grant of exemption under this notification. Ultimately a person manufactures goods for the purpose of selling them. For this reason, I do not agree with the appellants contention that ordinary meaning of the word person should not be adopted for construing this para. It is also seen that wherever the subordinate legislative authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case have been duly narrated by both the learned brothers and, as such, I am not repeating the same. The issue to be decided is whether the appellants are entitled to the benefit of Notification No. 175/86-C.E., dated 1st March, 1986 as amended by Notification No. 223/87-C.E., dated 22nd September, 1987. Shri V. Lakshmi Kumaran, the learned advocate has appeared on behalf of the appellants. He pleaded that the appellants are manufacturing Brosmin tablets marketed by Synthiko Formulations Private Ltd. Shri Lakshmi Kumaran, the learned advocate argued that Synthiko Formulations does not belong to the appellants and it belongs to a third person. Shri Lakshmi Kumaran referred to Notification No. 175/86-C.E. and referred to Para No. 7 of the said notification which provides that the exemption contained in this notification should not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification, and there is a proviso that nothing contained in this paragraph shall be applicable in respect of the specified goods cleared fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to volume 42 1658 To Date published by St. Paul Minn, West Publishing Co. and referred to page 258 which defines commercial mark. The distinction between a trade mark and commercial mark in the civil law of France is pointed out by Pouillet, Mareques de Fabrique, S 6, where he says : A trade-mark is not a commercial mark. * * * The trade-mark is especially or peculiarly the mark of the manufacturer, of him who creates the product, who manufactures it. The commercial mark is that of the dealer, of him who, receiving the product of the manufacturer, sells it to the consumer. Shri Lakshmi Kumaran, the learned advocate argued that the product cannot have two trade names. Shri Lakshmi Kumaran referred to explanation VIII of the notification which describes the brand name or trade name and a simple perusal of the same shows that brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which 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 the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 175/86-C.E. and Explanations IV and VIII are reproduced below :- 7 - The exemption contained in this notification should not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. Provided that nothing contained in this paragraph shall be applicable in respect of the specified goods cleared for home consumption before the 1st day of October, 1987. For the purpose of this notification, where the specified goods manufactured by a manufacturer, are affixed with a brand name or trade name (registered or not) of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader. Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which 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 betw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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