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TMI Blog2010 (1) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority Additional Commissioner, Delhi by his order dated 11-7-2002 had confirmed demand of 17,28,654.72 being the duty payable on the branded goods alongwith the interest thereon and had also imposed penalty of an equal amount besides penaity of Rs. 2,00,000/- against the appellant Sh. Mohd. Yusuf, partner of the firm. 3. The appellants are engaged in the manufacture of machines for wire and cable manufacturing falling under Chapter 84 of the Central Excise Tariff Act. 1985. Pursuant to visit of the Departmental Officers to the manufacturing unit of the appellants on 19-1-2000, it was revealed that the unit was engaged in the manufacture of machines in the brand name or trade name of other unit namely M/s. Minimax Engineering Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicating, or so as to indicate a connection in the course of trade, between such specified goods and the person using the name. In other words, according to the learned Advocate, the close relationship between a logo and the particular product as understood by the consumer which will result in acquisition of the goodwill in relation to such logo to the manufactures of the product has to be established in order to classify the logo to have acquired of brand name or trade name within the meaning of such expression under the said notifications. According to the appellants neither there is any evidence on the record to establish this aspect nor any finding has been arrived at on this point either by the adjudicating authority or by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 8/99-C.E., which is sought to have been violated by the appellants, and being the basis for confirming the demand of duty against the appellants reads thus - "4. The exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not ) of another person.............................................." Explanation IX defines the term "brand name" or "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, 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 indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader". 9. In other words, the acquisition of the good will by the manufacturer in relation to the name or logo used by him in relation to the particular product manufactured by him to be established before accusing another manufacturer of having used such name or logo for his product. 10. Perusal of the orders passed by the authorities below undoubtedly discloses analysis of the materials on record and findings arrived at on the basis of such analysis. However, none of those findings reveal that the department was able to establish that a logo 'Minimax' had acquired the trade name or brand name of M/s. Minimax Engi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the name or logo used by others which has not acquired the status of brand name or trade name within the meaning of the said expression under the said notifications, in our considered opinion cannot amount to violation of condition No. 4 of the said notification. 11. In the circular issued by the Board bearing No. 52/52/94-CX., dated 1-9-94 after taking note of the opinion of the Law Ministry in relation to the subject on which the said circular was issued, it was clearly observed thus - "It is clear that if a brand name is not owned by any particular person, the use thereof will not deprive a unit of the benefit of the small scale exemption scheme". The opinion of the Law Ministry which has been extracted in the said circular, rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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