TMI Blog1997 (8) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... mi Engg. Works, Ludhiana. Since the brand name of both the units was `Luxmi as such while regulating the exemption for M/s. C.R. Auluck and Sons (P) Ltd., the quantum of clearances of Luxmi Brand Fans effected by M/s. Luxmi Engg. Works will be includible towards the value of clearances of M/s. C.R. Auluck and Sons. Accordingly, they were not entitled for exemption under Notification No. 85/85, dated 17-3-1985 and they were required to make the payment of Central Excise duty from the very beginning. 3. The party had effected the clearances of the said product consequent upon the Budget for the year 1986-87 by virtue of Explanation IV of the Notification No. 175/86, dated 1-3-1986 but the implementation of this notification was inoperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctric fans for sale in India or abroad with the exception of the quantity required for the supplies in respect of execution of orders received or to be received for the Government department. (c) Clause (viii) stipulates that in case of infringement of passing of relating to the said trade mark `Luxmi the legal action will be taken on the third parties on the cost and responsibilities of the users M/s. Luxmi Engg. Works. (d) Property in the goodwill and reputation relating to the said trade mark is to remain with the owner M/s. C.R. Auluck and Sons (P) Ltd., Ludhiana. 6. From the clauses of the agreement, it is evident that the various conditions and restrictions imposed by the respondents are indicative of the fact that M/s. Luxmi E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that they had been paying duty with effect from 1-4-1985 on the insistance of the Department. The duty was being paid `under protest . They have already applied for the refund of the duty paid up to June, 1985. Since the value of their clearances did not cross the exemption limit of Rs. 7.5 lakhs, there is absolutely no basis for the proposed demand. 9. There are score of decisions of various Hon ble High Courts, wherein it has been held that brand name owner cannot be deemed to be the manufacturer of the goods. The Hon ble Supreme Court of India has finally settled the issue in their recent judgments on this point which are as follows :- (i) Union of India Others v. Cibatul Ltd. reported in 1985 (22) E.L.T. 302 (S.C.). (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to test a sample of each batch of these goods, and it was only after it had given its approval that the goods were to be released for sale to the buyer. It was understood that the products manufactured under the two agreements would bear certain trade marks which were the property of the foreign company, Ciba Geigy of Basle. The respondents filed a declaration for the purposes of the levy of excise under the Central Excises and Salt Act, 1944 showing the wholesale prices of different classes of goods sold by it during the period May, 1972 to May, 1975. The declaration included the wholesale prices of the different resins manufactured under the two aforesaid agreements. The Assistant Collector of Customs revised those prices upwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e added to the wholesale price charged by the respondent to Nestle s for the purpose of computing the value of the goods manufactured by the respondent in the assessment to excise duty." It can, therefore, be seen that whereas the judgment of M/s. Food Specialities Ltd. was in the context of the particular facts of that case, it is the judgment in the case of M/s. Cibatul Ltd. from which ratio could be drawn and applied to similar cases. 15. While the A.C. is correct in holding and the learned DR is right in pointing out that the Hon ble Supreme Court judgment in the aforesaid cases basically related to valuation and determination of wholesale price in the light of the agreements in question in those cases, in the case of M/s. Cibatul L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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