TMI Blog2010 (11) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent. [Order per : D.N. Panda, Member (J)]. The appellants came in appeal against Order-in-Appeal No. 07-08-CE/APPL/KNP/2010, dated 12-1-2010 passed by the Commissioner (Appeals), Customs Central Excise, Kanpur upholding the order passed by the adjudicating authority. 2. According to the impugned order brief facts of the case noticed by the learned Commissioner (Appeals) was that Avadh Poly Tubes Pvt. Ltd. was engaged in the manufacture of Polymer Flexible Pipes which is excisable goods and part of such goods were cleared paying excise duty to M/s. Bharti Airtel Ltd. considering that to be brand name goods in view of printing of the mark Bharti Airtel on such goods printed with inkjet printer. For the rest of the clearances the appellant company was availing exemption under Notification No. 8/2003-C.E., dated 1-3-2003. 3. According to Revenue, the mark Bharti Airtel printed on the goods was not brand name and the goods were not branded goods in the light of Board s Circular No. 71/71/94-CX., dated 20-7-94 as Bharti Airtel is not the brand name but is the name of a company and the goods are not traded in the market. Therefore, para 3(a) of the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haser i.e. Bharti Airtel Ltd. did not bring the goods to be branded goods for which demand was confirmed as that was made in the adjudication order. He upheld the adjudication order in toto. 6. Learned Counsel Shri Bipin Garg appearing on behalf of the appellants submitted that the goods manufactured by the appellants for the years 2007-08 and 2008-09 was specifically marking brand name for Bharti Airtel Ltd. The goods so marked were cleared on payment of excise duty and the unmarked goods were enjoying SSI benefit in terms of Notification No. 8/2003-C.E., dated 1-3-2003. Department clubbed both, printed and unprinted goods baselessly and unjustly but under the assumption that the goods marked as Bharti Airtel shall not be branded goods and entire clearances for the year 2007-08 having exceeded Rs. 1.5 crores whole clearance shall be leviable to duty. So also for the year 2008-09. Thus, the duty demand arose. There was also alternative claim by the learned Counsel that if there shall be liability, Cenvat credit should be allowed for the unprinted goods because of levy proposed by the department. It was also his further claim that the authority did not look to cum-duty aspect wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the brand name. Such goods are normally manufactured by the SSI unit as per the orders of the customer for further use by the latter in the manufacture of the final product. Examples of such goods are elastic tapes used in the manufacture of undergarments, castings, packing materials such as printed cartons of paper, HDPE bags. Polypropylene caps, metal containers etc. On the basis of circular/clarifications issued by the government, from time to time, the brand name restriction was not being applied to such goods and the benefit of the exemption was being extended on the ground that there is no nexus between the person manufacturing the goods and the brand name. In the case of Kohinoor Elastics Pvt. Ltd. v. CCE, Indore - 2005 (188) E.L.T. 3 (S.C.)], the Hon ble Court has held that the wording of the notification does not allow the benefit of the exemption in this situation as the notification does not envisage a nexus between the manufacturer and the brand for it to attract the mischief of the brand name restriction. Accordingly, the mere affixation of brand name of another person is adequate to disqualify the goods for SSI exemption. Shri Garg, therefore, submitted that adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t print was neither trade mark nor signifies a brand name. Therefore, the whole claim of the appellants is misconceived. 11. Learned D.R. with the aforesaid averments supported the order of the authorities below relying on the judgment of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. v. CCE, Chandigarh - 1995 (75) E.L.T. 214 (S.C.). He also relied upon the decision of the Hon ble High Court of Madras in the case of BHEL Ancillary Association v. CCE - 1990 (49) E.L.T. 33 (Madras). Relying on this judgment, he submitted that the exemption given to SSI being a creation of the statute must be construed strictly. Marking an inscription on the components manufactured by a unit should not be construed to be trade name or brand name. Learned D.R. pleaded that the marking or inscription individually do not go to constitute name or mark to claim exemption. Learned D.R. further relied on the Tribunal s decision in the case of Srinisan Cable (P) Ltd. v. CCE, Hyderabad - 2000 (126) E.L.T. 1057 (Tri.) and also relied upon the decision in the case of Electro HMS (P) Ltd. v. CCE, Bangalore - 2000 (116) E.L.T. 265 (Tri.) to argue that mere fixation of a word on the product does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unambiguous and clear. It specifically states that the exemption contained in the Notification shall not apply to specific goods which bear a brand name or trade name (registered or not) of another person. It is settled law that to claim exemption under a Notification one must strictly comply with the terms of the Notification. It is not permissible to imply words into the Notification which the Legislature has purposely not used. The framers were aware that use of a brand/trade name is generally to show to a consumer a connection between the goods and a person. The framers were aware that goods may be manufactured on order for captive consumption by that customer and bear the brand/trade name of that customer. The framers were aware that such goods may not reach the market in the form in which they were supplied to the customer. The framers were aware that the customer may merely use such goods as an input for the goods manufactured by him. Yet Clause 4 provides in catagoric terms that the exemption is lost if the goods bear the brand/trade name of another. Clause 4 does not state that the exception is lost only in respect of such goods as reach the market. It does not carve o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the manufacturer. It was the manufacturer, in the case of Kohinoor Elastics the Appellant, who was applying/affixing the brand/trade name on the goods. Thus the words for the purpose of indicating refers to the purpose of the manufacturer (Appellant). The course of trade was of that manufacturer and not the general course of trade. Even if a manufacturer only manufactures as per orders of customer and delivers only to that customer, the course of trade, for him is such manufacture and sale. In such cases it can hardly be argued that he has no trade. In fairness it must be stated that it was not argued that there was no trade. Such a manufacturer may, as per the order of his customer, affix the brand/trade name of the customer on the goods manufactured by him. This will be for the purpose of indicating a connection between the goods manufactured by him and his customer. In such cases it makes no difference that the goods as manufactured did not reach the market. The use of the brand/trade name was in the course of trade of the manufacturer for the purpose of indicating a connection between the goods and the customer who used the brand/trade name . Clearly in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer i.e. Bharti Airtel Ltd. While doing so, the appellant affixed the brand/trade name of its customer i.e. Bharti Airtel Ltd. on the pipes. Those were being so affixed because the appellant and/or customer wanted to indicate that the goods (pipe) have a connection with the customer i.e. Bharti Airtel Ltd. This is clear from the fact of the case that pipes will not and cannot be used by any person other than the present using that brand/trade name. The name so affixed brings goods and the user thereof to the proximity. When a customer wants brand/trade name affixed on the product is for his knowledge or to serve his interest. The whole intention behind affixing the word Bharti Airtel was to know the connection between the product and Bharti Airtel Ltd. The Small Scale Industry like the present appellant affixing the brand name on the goods opted to forgo SSI exemption benefit in respect of goods so affixed with the brand name Bharti Airtel and pay duty. Consequently, affixing of brand name Bharti Airtel is established in this case following the ratio laid down by Apex Court in Kohinoor Elastic case (supra). 18. Learned Counsel for the appellant relied on the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
