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TMI Blog2006 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts in brief are that M/s. Hira Cement, Raipur are manufacturer of cement and are registered with the Central Excise department and have claimed exemption under SSI exemption notifications issued from time to time. They filed classification list/declaration claiming SSI exemption from time to time, Show-cause notices were issued to them on the ground that they are not eligible for the benefit of Notification No. 1/93-C.E., dated 28-2-93 as amended and Notification No. 16/97-C.E., dated 1-4-97 and 38/97-C.E., dated 26-7-97 as claimed in their declaration filed under Rule 173B. The ground for denying the SSI exemption was that M/s. Hira Cement were selling most of their goods through the premises of M/s. Hira Industries Ltd., Raipur which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that both the brand names are having semi-circle with a diamond in between and below the name BBC or Hira is written. The diamond in the semi-circle is the actual brand name which is common in both the concerns. The attention was drawn to Para-7 of Supreme Court's decision in the case of Milmet Oftho Industries v. Alegran Inc. reported in 2004 (170) E.L.T. 260 (S.C.) where the guidelines already given in case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., reported in 2001 PTC 300 (S.C.) are reproduced. The guidelines are as under :- 'in a passing off action for deciding the question of deceptive similarity the following facts had to be taken into consideration :- "(a) The nature, of the marks, i.e. whether the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follow. The words, which follow, are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or a trade name... No hard and fast rule can be laid down, however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. (2) Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders reported in 2004 (165) E.L.T. 481 (S.C.) - relying on Para 7 of the decision, it was stated that "we are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea that in an earlier order-in-original No. 432/Ch.25/C/2001, dated 21-9-2001 demand based on the allegation relating to brand name were dropped. The Revenue has not filed any appeal against the said order. Since this order has decided the issue, the cement packed in two different brand name/logo one of Hira Industries and other of Hira Cement could not have been taken in review to agitate the matter in further appeal, when earlier no appeal was filed for the same cement and packed in the same type of bags with the same logos. 8. The Hon'ble Supreme Court remanded the case for afresh decision on the ground that in case of Commissioner of Central Excise, Chandigarh v. Mahaan Dairies reported in 2004 (166) E.L.T. 23, Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not create confusion in the mind of any person that they are deceptive in nature and one can confuse with the other. In the circumstances, we find that both the brand names are different and not deceptive in nature. Similarility should be such that one can confuse with the other products, if one do not carefully looks into it. But in the present case the word BBC and Hira are boldly and clearly written which makes the distinction very clear. Therefore, the decisions of the Supreme Court on which reliance has been placed by Revenue do not support their case, difference is in the brand. The brand names are with diamond in semi-circle and then the names broadly written as BBC and Hira, which are totally different and cannot be deceptive. 11.& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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