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TMI Blog2010 (7) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... facturers of Tyres, Tubes, Tyre flaps and Rice Rubber Rolls classifiable under Chapter 40 of the Central Excise Tariff Act, 1985. The respondents were availing the benefit of SSI exemption under Notification No. 1/93-C.E., dated 28-2-1993. The respondents had filed the declaration in terms of Rule 73 (B) of the Central Excise Rules, 1944, w.e.f. 1st May, 1995, wherein they declared the description of their goods including the brand name to be "ASIAN" for Rice Rubber Rolls and Polishers. Subsequently, they filed another declaration under Rule 173B w.e.f. 23rd July, 1996, declaring their brand name for the said product to be "RHINO", "SONA", "FIELD MARSHAL", "ASIAN', "S. CHAMPION" and "ANIL SPECIAL". The records with the Department disclosed that another industry by name M/s. Lyallpur Rubber Mills, Jalandhar was also engaged in the manufacture of Rice Rubber Rolls and were clearing their products under brand names, "RHINO", "SONA", "FIELD MARSHAL", "ASIAN" and "S. CHAMPION" since prior to the commencement of the respondent-firm and same was specified in their declarations and classifications filed by them from time to time. On investigation being carried out a show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garh-I v. Mahaan Dairies reported in 2004 (166) E.L.T. 23 (S.C.), Meghraj Biscuits Industries Ltd. v. Commissioner of Central Excise, U.P. reported in 2007 (210) E.L.T. 161 (S.C.), Mysore Metal Industries v. CC, Bombay reported in 1988 (36) E.L.T. 369 (S.C.) and BOC India Ltd. v. State of Jharkhand reported in 2009 (237) E.L.T. 7 (S.C.) submitted that the provisions of the notification clearly require the manufacturer to establish that they are using the brand name, which does not belong to any other person and in the absence of any material in that regard, in the face of the records placed by the Department relating to the declaration, prior in time, by M/s. Lyallpur Rubber Mills reveal similar brand name for their products and further their classification list filed from time to time disclosed that the respondent had been using the brand name belonging to another person and this aspect was totally overlooked by the Commissioner (Appeals). As against this, ld. Advocate for the respondent placing reliance in the decision of the Tribunal in the matter of Commissioner of Central Excise, Visakhapatnam v. Balaji Electrodes (P) Ltd. reported in 2005 (191) E.L.T. 204 (Tribunal-Bangalore) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade name of another person. Neither in Clause 4 of the Notification nor in Explanation IX is it provided that the specified goods must be the same or similar to the goods for which the brand name or trade name is registered. The Tribunal has in adopting the above reasoning effectively added to the Notification words to the effect "brand name or trade name in respect of the same goods". This is clearly impermissible. It is to be seen that there may be an unregistered brand name or an unregistered trade name. These might not be in respect of any particular goods. Even if an unregistered brand name or trade name is used the exemption is lost. This makes it every clear that the exemption would be lost so long as the brand name or trade name is used irrespective of whether the use is on same goods as those for which the mark is registered." 10. In Mahaan Dairies case while reiterating the decision in Rukmani Pakkwell Traders's case, it was held thus :- "It makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different so long as the trade name or brand name of some othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon brand name used by different manufacturers. Ld. Advocate for the respondents fairly conceded that materials on record do not disclose any evidence having been placed on record in that regard by the respondents. His contention, however, was that it was for the Department to prove that the brand name belongs to another person. As far as the onus in that regard is concerned, the Department had already discharged the same by producing the declaration under classification list filed by M/s. Lyallpur Rubber Mills, disclosing the fact that the said company had been clearing their product with the said brand name in accordance with their declaration and classification list. Being so, it was necessary for the respondents to discharge the burden upon them in terms of the said notification, which records disclose that they have failed to discharge the burden. 13. The findings by the Commissioner (Appeals) that mere declaration by another company would not ipso facto prove that the same brand names were used by any other company has been arrived without referring to the materials on record in that respect. Besides, as already observed above, the burden was essentially upon the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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