TMI Blog2011 (1) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... said name. The Tribunal has also arrived at a finding of fact that “Minimax” has not acquired any such reputation that it can be associated with “MEI” - Therefore, nothing could be brought on record by the Department to demonstrate or prove that ‘Minimax’ has acquired any brand name or trade name as defined in Explanation IX of the Notification No. 1/93-C.E - Decided in favor of assessee. - 12 of 2010 - - - Dated:- 17-1-2011 - A.K. Sikri and M.L. Mehta, JJ. REPRESENTED BY : Shri Satish Kumar, Sr. Standing Counsel, for the Appellant. Shri Vinay Garg with Ms. Jyoti Sharma, Advocates, for the Respondent. [Judgment per : A.K. Sikri, J. (Oral)] The respondent No. 1 M/s. Minimax Industries is a partnership firm of which respondent No. 2 is one of the partners. The respondent No. 1 (hereinafter referred to as the Partnership Firm ) enjoys the status of Small Scale Industry for the purposes of Excise Act and is thus granted exemption from payment of excise duty under the said Act. It is manufacturing machines for production of wire and cables. 2. On 19th January, 2000, the Central Excise Officers visited the premises of the partnership firm with prior information t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minimax did not indicate any connection of the goods manufactured by MEI with the partnership firm as the name of manufacturer is prominently display right under the brand name or logo. (4) The name Minimax did not belong to MEI as alleged in the show cause notice and this assertion in the show-cause notice was baseless. The brand name Minimax was also not registered in the favour/name of MEI or its sole proprietor. In fact, during the course of investigation, both the partnership firm was as well as MEI had claimed that name Minimax belonged to them. Therefore, merely because MEI had also been using the same brand name for a period longer than the partnership concern, it would not follow that the partnership firm was using the brand name of the said MEI. 4. The adjudicating authority after considering the aforesaid reply of the partnership firm and the submissions made at the time of hearing, returned the finding that the brand name Minimax belongs to MEI which was using the same since 1980 and, therefore, condition No. 4 as provided in Notification No. 8/2002 was violated. On this basis, it was held that the partnership firm was not entitled to exemption under the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rand name or trade name shall mean a brand name or a 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 indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person . 7. Condition No. 4 as already noted above, stipulates that the exemption contained in this Notification would not be given to a person in respect of goods where brand name or trade name of another person is used i.e. the goods bearing the brand name or trade name which belongs to some other person. It is immaterial whether such brand name or trade name is registered or not. However, Explanation-IX gives a unique and particular definition to the term brand name or trade name . It is clear from the reading of the said explanation that the definition of brand name or trade name contained therein is concerned with a particular name or mark which is used to indicate, in the course of trade, a connection b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as a symbol or a monogram or a label or even a signature of invented word is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words any writing . These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words write and Writing is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a Notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l design/shape could not be said to be descriptive enough to serve as an indicator of nexus between the goods of the assessee and the Marketing Company. On this basis, it was concluded that the alleged monogram could not be the brand name or trade name of the Marketing Company. 12. We would also like to reproduce the following observation of the Supreme Court in the case of Commissioner of Central Excise, Chandigarh-II v. Bhalla Enterprises, (2005) 8 5CC 308 = 2004 (173) E.L.T. 225 (S.C.) The apprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded. The notification clearly indicates that the assessee will be debarred only if it is use on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights over the use of logo Minimax and never taken any action against the partnership firm. It is not a case of the department that the said MEI has allowed the partnership firm to use the said name. The Tribunal has also arrived at a finding of fact that Minimax has not acquired any such reputation that it can be associated with MEI . 16. At this stage we would like to revert to the recent pronouncement of Supreme Court in the case of Commissioner of Central Excise, Delhi v. M/s. Ace Auto Comp. Ltd.[Civil Appeal No. 3051/2003 decided on 16th December, 2010] [2011 (263) E.L.T. 3 (S.C.)]. On the Facts of that case, the Supreme Court has held that the respondent assessee has infringed condition No. 4 and, therefore, was not entitled to exemption. However, once we take note of the facts of that case, it would be established that this is clearly distinguishable. In that case the assessee was manufacturing cover assembly for TATA 310 vehicle under the brand name Ace . However, since the product was manufactured for TATA, the TATA has allowed the assessee to pre-fix the symbol and logo TATA along with its brand name ACE . It was on these facts that the Supreme Court has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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