TMI Blog1998 (2) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1/93, in view of para 4 and explanation 9 of the above said notification. It was held by the lower authorities that as per Explanation 9, if any trader uses the brand name of another trader in relation to the specified goods so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark, then the benefit is not available. It is the case of the lower authorities that M/s. ARR Seeval Factory are selling their raw betelnut in chipped form. However, the appellants are securing the scented supari from M/s. ARR Enterprises, these are admitted facts. But, the case of the department is that Explanation 9 hits the appellants. Therefore, the lower authorities denied the benefit. 3. The learned Consultant, Smt. Komala Choudhury, contended before us that in order to attract the mischief under Explanation 9 of the above said Notification, it must be established that the appellants are using the brand name of another person on such goods which are sold by the other person. She pointed out that both these conditions are not applicable in the present case of the appellant. 4. Her first contention is that such goods used in explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held as follows : 3. The matter has been examined by the Board. It is observed that as per Section 8 of the Trade and Merchandise Marks Act, 1958, a trade mark can be registered in respect of any or all goods. In other words, a trade mark need not necessarily be in respect of all goods unless the registration has been so acquired. It is, therefore, quite possible and permissible to have the same trade mark/brand name for different classes of goods owned by different persons. In the instant case, the company `A are the legal registered owners of the trade mark `HOTLINE in respect of gas stoves whereas the company `B are the registered owners of the same trade mark but for the commodity revision. In that view, Notification No. 223/87, dated 22-9-1987 cannot be relied upon to deny the exemption to company `A in respect of gas stoves manufactured under their own trade name/brand name `HOTLINE . Therefore before denying a company benefit of SSI exemption by relying on Notification No. 223/87, dated 22-9-1987, full facts regarding the ownership of the brand name/trade name should be first ascertained. [Based on M.F. (D.R.) letter F. No. 213/41/88-CX. 6, dated 30-12-1988] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the appellants are selling scented betelnuts, will not make any difference as far as the goods are concerned. 15. He distinguished the decision of the Madras High Court, which was relied on by the learned Consultant and stated that the notification referred to therein was a different one. Their lordships were dealing with a common trade mark on aerated water and the wordings in the notification are entirely different. 16. We have considered the submissions of both the sides. It is no doubt true that in the decision of the Hon ble High Court of Madras, their lordships were dealing with Notification No. 148/82. But, what is more important is the principles laid down in that decision should be looked into by the Tribunal. In para 13 of the above said order, their lordships held as follows : 13. A bare reading of the explanation unmistakably shows that the expression common trade mark aerated waters implies aerated waters which are sold under the same trade mark or under the same brand name in more than one factory, whether belonging to one or more manufacturers. Thus, the sale must be with the same trade mark or brand name in order to attract the categorisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g therein by taking recourse to modes other than the plain language. The expression same has to be understood in the context of the intention of the authorities issuing the notification. The authorities intended to deny the benefit of individual exemptions only where one or more manufacturers sell the product under the same trade mark or brand name. It is a fundamental rule for the construction of statutes, that where the language is plain and clear, the words must be held to have been used, according to the plain and ordinary meaning of the term to determine their connotation or meaning. Therefore, using the well settled rule of interpretation, the conclusion is irresistible that the Collector fell in error in construing same as similar or even deceptively similar to deny the benefit of individual exemption to the writ petitioners under the notification. 17. A perusal of the above said para goes to show that the language used in the notification is clear, it is not permissible to interpret the meaning of the word occurring therein by taking recourse to modes other than the plain language. The expression same used in that notification, their lordships held has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 175/86. The same principles are laid down by the Tribunal in the other cited decision. 20. Thus examining the facts in this case, the facts available in this case are M/s. ARR Seeval are marketing raw betelnut in chipped form. But, the appellants are marketing Scented Supari. Therefore, it is clear that what the appellants are marketing is scented supari and M/s. ARR Seeval was marketing raw betelnut in chipped form. These two are different goods known in the market differently. A bare look at the samples goes to show that one is a raw material which is raw form and the other is scented supari which is obtained by artificial process. The process of manufacture of scented supari, as pointed out by the learned Consultant, is mentioned in the show cause notice itself. Therefore, it is clear that in common parlance, both the goods cannot be said to be the same. 21. It is further seen from the Circular of the Board in F. No. 213/41/88, the Board itself has clarified that it is permissible to have the same trade mark for different clauses of goods owned by different persons. This circular of the Board is in consonance with our view. Moreover, the department cannot arg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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