TMI Blog1994 (5) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... d against non-grant of benefit of exemption Notification No. 175/86-C.E., dated 1-3-1986 as amended as per its clause 7. 3. In Appeal No. E/5593/92-B1 the Collector (Appeals) has remanded the matter for the purpose of working out the correct amount of differential duty chargeable for both the show cause notices issued against the appellants. 4. Appeal No. E/1395/93-B1 arises from Order-in-Appeal No. 216-CE/DLH/93, dated 10-5-1993 by which the Collector (Appeals) has dismissed the appeals, as not maintainable, in view of the fact that the Assistant Collector has only worked out the demand of duty in compliance of the order of the Collector (Appeals). He has held that since the appellants did not dispute the amount of demand, they cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brand Name has been defined as under :- Brand Name or trade name means 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 such specified goods and some person using such name or mark with or without any indication of the identity of that person." There is also a question pertaining to assessment and valuation, but as the same has not been challenged before us, hence those facts are not noted herein. The Assistant Collector after granting an opportunity of hearing, has upheld the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants goods and the goods manufactured by M/s. G.B.C. and, therefore, para 7 of the notification would not come into play. He submitted that the para 7 of the notification would apply only when there is no connection in the course of trade between such specified goods and the persons using such a name as a trade mark on the goods. The ld. advocate also brought to our notice about the judgment of Calcutta High Court in the case of Banner Co. v. Union of India as reported in 1994 (70) E.L.T. 181 wherein para 7 of the notification has been quashed. He, therefore, submitted that the question of applying the said clause to the appellants does not arise. He fairly submitted that the Hon ble Karnataka High Court in the case of Nectar Beve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the foreign company is being benefited with the goodwill and their trade name is being popularised in India by virtue of their trade name being marked on goods which are manufactured by the appellants. Para 7 of the Notification clearly excludes grant of exemption in case of this nature and that the lower authorities have rightly denied the same. The Tribunal has already held in the case of Thio Pharma v. Collector of Central Excise as reported in 1992 (60) E.L.T. 395 by a majority order that use of such brand name will disentitle the grant of exemption as held in para 19 of the Third Member s opinion, which is noted hereinbelow : 19. ... A perusal of para 7 of the Notification No. 175/86-C.E. shows that the exemption contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be registered, and it may be 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. In my view, the word Synthiko" has to be treated as a brand/ trade name keeping in view the definition as given in Explanation VIII of the notification. I agree with the conclusions given by the learned brother, Shri P.C. Jain, Member Technical, Accordingly, I am of the view that benefit of Notification No. 175/86-C.E., dated 1st March, 1986 is not available to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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