TMI Blog2005 (7) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period, relevant for the purpose of the present appeal, were availing benefit of small scale Notification No. 1/93-C.E., dated 28-2-93. Proceedings were initiated against them by way of issuance of show cause notice dated 7-2-97 alleging that since they were using the brand name IC of M/s. Indian Container Ltd., they were not entitled to the benefit of the notification in question. Accordingly, notice proposed to recover duty of Rs. 5,29,252/- in respect of the metal containers cleared during the period from 1-4-86 to 3-8-86. Notice also proposed imposition of penalty on the said assessee as also on its director along with confiscation of the seized goods. 3.In reply to the show cause notice, assessee contended that IC was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation and the same becomes liable to be refunded when, in appeal, the order confirming the same, is set aside. The revenue is also in appeal against the said order on the ground that the earlier order on the disputed issue of brand name was appealed against before Tribunal and is pending decision. The appeal of the revenue on this issue bears A. No. E/2138/01. 5.After the appeal was allowed by Commissioner (Appeals) with the directions to refund the amount, Assistant Commissioner passed another order dated 7-12-2001 sanctioning the refund claim but directing the same to the credit of the consumer welfare fund on the ground of unjust enrichment. The said order was challenged before Commissioner (Appeals) who after taking note of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Astra Pharmaceuticals (P) Ltd. v. Collector reported in 1995 (75) E.L.T. 214 (S.C.), the Hon ble Supreme Court had observed as under : .......... it would attract levy only if the container or packing carried out distinctive marks so as to establish the relation between the medicine and the manufacturer. But the identification of a medicine should not be equated with the product mark. Identification is compulsory under the Drug Rules. Technically it is known as house mark in Narayan s Book of Trade Mark and Passing off, the distinction between House Mark and Product Mark (Brand name) is brought out thus. In the Pharmaceutical business a distinction is made between house mark and product mark. The former is used on all the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of M/s. Ravi Metalloids v. Collector reported in 1993 (63) E.L.T. 326 (T) laying down that small scale industries unit manufacturing metal labels/metal computer etc. bearing the brand name or manufacturer or traders would be liable to the benefit of Notification No. 175/86-C.E. 8.Commissioner (Appeals) has also observed in Paragraph 9 Paragraph 10 of the order as under :- I have carefully gone through the facts 9. of the case, findings given in the impugned order, submissions made by the appellant and the law on the subject. There are two inter-linked issues in this case, namely branding and clubbing, but the most cause of this case is denial of exemption under Notification No. 1/93 as amended on account of branding. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the name/logo printed on such metal labels etc., serves as brand name, they are not hot by the mischief of paragraph 7 of the Notification No. 175/86-C.E. Benefit of notification not to be denied if otherwise eligible. The board issued a circular as per Letter No. 345/35/87-TRU, dated 29-10-1987, which clarifies that the name/logo printed on the metal labels etc. is a brand name/trade name in respect of goods on which such labels are to be affixed, because such name/logo indicates a connection in the course of trade between the goods on which such labels are affixed and the brand name owner. Names printed on such labels are not brand name by themselves and as long as these metal labels are not affixed on the goods in the trade of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... felt that 5. only point before Commissioner (Appeals) was whether the cans manufactured by M/s. K.P. Electricals were having brand name of M/s. India Containers Ltd. who were not entitled for small scale exemption under Notification No. 1/93, dated 28-2-93 the fact that M/s. India Containers Ltd. was not entitled for exemption Notification No. 1/93, dated 28-2-93 is not in any dispute. The Department has clearly made out that the cans manufactured at M/s. K.P. Electricals Pvt. Ltd. were of M/s. India Containers Ltd. and were physically affixed with the monogram IC or printed cans and 3 indent marks or the plain cans. The Director and the Excise In-charge of M/s. K.P. Electricals Pvt. Ltd. and Plant Manager of M/s. India Containers Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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