9911796707
TMI Blog2012 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (M/s. VKPIPL). By order dated 14-2-2002, the lower appellate authority also held that the appellants have wrongly availed the small scale exemption under Notification No. 1/93 by deliberately suppressing the fact of the usage of brandname of M/s. VKPIPL. By order dated 27-5-2009, the Tribunal held that by arranging to emboss a logo of the alphabet 'K' on the pumps manufactured by the appellants they had not used the brandname of another person. The Tribunal also held that therefore the appellants had been denied the SSI exemption by the lower authorities without legal justification. For coming to this conclusion, the Tribunal relied upon the Board's Circular No. 52/94-CX., dated 1-9-94. 3. On appeal by the Department, the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, we set aside the order of the Tribunal and remit back the matter to CESTAT for de novo consideration of the facts of the case after which a considered and reasoned decision shall be rendered by the Tribunal. All the relevant issues could be raised and urged before the CESTAT and all the relevant decisions may also be placed by both the parties. In terms of the aforesaid observations, the appeal is disposed of by way of remitting the matter to the CESTAT which shall hear the matter as expeditiously as possible". 4. Initially when the matter was heard by us on 12-5-2011, the learned counsel Shri K. Subash Chandran argued that the Order-in-Original has been passed in respect of two show-cause notices whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. VKPIPL and therefore the appellants are entitled to the small scale exemption. 6. Shri C. Rengaraju, learned SDR appearing for the Department supports the impugned orders passed by the authorities below. He states that the letter 'K' is being used as a logo and a monogram and the same indicates a connection in the course of trade. The brandname is of M/s. VKPIPL who have been using it for a much longer period and the appellants are using the very same brandname and therefore they are not entitled to the small scale exemption in view of the specific provisions contained in the Notification No. 1/93. 7. We have considered submissions from both sides as well as the case records and the cited circular. We find that the cite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, another director of the appellant-company also calls the letter 'K' used on the pumps as a monogram. Thus it is clear that the simple letter 'K' is not being used but the same is being used as logo/monogram and we find that in the impugned Notification No. 1/93 'brandname'/'trademark' has been defined to mean a mark, such as symbol as well as monogram in relation to specific goods for the purpose of indicating a connection in the course of trade between the goods and the person using such mark. Therefore, the argument that the monogram 'K' is a simple letter is not acceptable. 10. Moreover, it is an admitted fact that the monogram 'K' is being used on the back cover of the pumps. Shri K. Sampath Kumar in his aforecited statement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCE, Chandigarh-I v. Mahaan Dairies - 2004 (166) E.L.T. 23 (S.C.) has held that even if goods are different, use of a brandname on different goods would also disentitle from small scale exemption. In the cited case the different goods were 'pickles' and 'tastemaker'. The learned counsel has referred to an affidavit dated 6-7-1999 by A.J. Joshi to the effect that letter 'K' appearing on the name plate of M/s. VKPIPL has only a sentimental value and is used in the fond memory of the person designing the pump and that M/s. VKPIPL and the appellants manufacture different kinds of pumps. Despite the opportunity given, the ld. Advocate for the appellants was not able to satisfy us as to before which authority, if at all, this affidavit was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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