TMI Blog2002 (12) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 93, dated 28-2-1993. Show cause notice dated 11-1-1995 was issued proposing denial of the exemption on the ground that the goods were being cleared under the brand name 'Philips' belonging to another person. The Assistant Commissioner confirmed the charges raised in the show cause notice and confirmed the duty demand of Rs. 1,88,381.40 covering the period August to November, 1994. He also imposed a penalty of Rs. 1,000/- upon the respondents. The Commissioner (Appeals), Mumbai set aside the order of the Assistant Commissioner's order holding that, for denying the benefit of the exemption it has to be established that the word 'Philips' used by the respondents in respect of the products manufactured by them belongs to another person, and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and cleared by a SSI unit after affixing the goods with the brand name or trade name of another person who used the brand name/trade name on goods different from the specified goods of the SSI unit. In order to resolve this issue, we think, we have to read together Explanation IX and Explanation X to the notification. Explanation IX defines brand name/trade name as under :- 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 (xxx) 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 goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purpose of para 4. It has been argued that the connection in the course of trade' can only be a connection through the specified goods referred to in para 4 and goods identical therewith in the market. We are of the view that this argument has great force as it appears to be well supported not only by the Hon'ble Supreme Court's judgement in Paliwal Electricals (supra) but also by Explanation X to Notification 1/93-C.E., which reads thus :- For the purpose of this notification, where the specified goods manufactured by a manufacturer, bear 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearing the same under his brand name/trade name. 14. The above position appears to be well supported by the Apex Court's decision in the case of Paliwal Electricals wherein their Lordships explained the object of para 7 of Notification No. 175/86 as under:- Now what does para 7 provide and why? It provides that the benefit of Notification No. 175 shall not be available to a small manufacturer, who affixes the brand-name or trade-name (registered or not) of another person who is not eligible for the grant of exemption under the said notification. Explanation VIII defines the expressions brand name or trade name . The Explanatory Note appended to the notification states that (T) his amendment seeks to deny small scale exemption in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lay down that, to attract the mischief of para 7, the goods manufactured by the SSI unit and cleared under the brand name of another person should be identical to that manufactured by the brand name owner, in which event only the goods could become indistinguishable in the market from those manufactured by the brand name owner. We have already noted that para 7 of Notification No. 175/86-C.E. considered by the Apex Court is pari materia to para 4 of Notification No. 1/93-C.E., which is not disputed also. The reasoning of the Apex Court will, therefore, be equally applicable to para 4 ibid. We have no doubt in our mind that, to attract the mischief of para 4, the specified goods manufactured by SSI unit should have been cleared under the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
