Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (6) TMI 155 - SUPREME COURT OF INDIA

2015 (6) TMI 155 - SUPREME COURT OF INDIA - 2015 (318) E.L.T. 585 (SC) - Benefit of exemption/concessional rate of duty under Notification No.175/86-CE dated 1.3.1986 - Exemption or concessional rate of excise duty to the SSI units - Use of third party brand name - Held that:- Benefit of exemption would not apply to the specified goods where a manufacturer affixes the specified goods with brand name or trade name (registered or not) of another person who is not eligible for grant of exemption un .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said Notification.

On the packing of goods, brand names of the assessee “INTATEX” and “INTACO” were clearly and prominently printed. In between these two brand names, a hexagonal shape/design, which was claimed by the Department to be the brand of the Marketing Company, was also printed. In this backdrop, the question was as to whether the assessee company was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X



Matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Matter remanded back - Decided in favour of revenue - CIVIL APPEAL NO. 9157 OF 2003 - Dated:- 19-3-2015 - A.K. SIKRI AND ROHINTON FALI NARIMAN, JJ. For The Appellant : Mr. A.K.Sanghi,Sr.Adv., Ms. Nisha Bagchi,Adv., Mr. Ritesh Kumar,Adv. and Mr. B. Krishna Prasad,Adv. For The Respondent : Mr. Neelima Tripathi,Adv., Ms. S.Majuvdan,Adv.f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

efit of exemption/concessional rate of duty under Notification No.175/86-CE dated 1.3.1986 which grants exemption or concessional rate of excise duty to the SSI units. However, in the year 1997 a show cause notice was issued to the respondent by the appellant/Excise Department stating that the respondent is wrongly claiming the benefit of the aforesaid Notification inasmuch as use of the brand name 'Stangen' and also the logo belonged to Dr.K.Anji Reddy, Chairman of Dr.Reddy's Labora .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion inasmuch as para 7 of the said Notification denied exemption in those cases where the manufacturer (SSI) affixes the specified goods with a brand name or trade name, registered or not, of another person who is not eligible for grant of exemption under this Notification. Explanation VIII to the said Notification which defines brand name reads as under:- Explanation VIII - Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which includes the respondent Company as well as DRL. The defence, however, was that Dr. K.Angi Reddy had not assigned the trade mark either to the respondent firm or any other manufacturer. It was also mentioned that the respondent as well as the DRL are Public Limited Companies having separate legal entities of their own with their own independent spheres of activities. In this behalf the contention was that DRL manufactured altogether different products than the products mentioned by the resp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ibunal (CEGAT). The contention of the Department was that dropping of the proceedings by the Commissioner only on the ground that the goods manufactured by the respondent are different from the goods manufactured by DRL was untenable as it is not a relevant factor at all. However, this plea of the Department did not even prevail with the CEGAT which has, vide impugned judgment dated 31.12.2003, dismissed the appeal observing that the goods manufactured by the assessee were different from the goo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion would not apply to the specified goods where a manufacturer affixes the specified goods with brand name or trade name (registered or not) of another person who is not eligible for grant of exemption under this Notification. As per this, in order to deny the exemption under this Notification, the Department has to show that on the goods which are manufactured by the manufacturer i.e. the SSI, the brand under or trade name of another person is affixed and that another person is not eligible f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to indicate a connection in the course of the trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore, what follows from the reading of this Explanation is that if the brand name is used in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Central Excise, Chandigarh-I Vs. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as under : We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ld not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise, Chandigarh-II vs. Bhalla Enterprises (2005 (8) SCC 308) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle. 9. At this stage, Mrs. Neelima Tripathi, learned counsel appearing for the respondent, had made a plea before us to the effect that on the facts of this case the respondent would still be entitled to exemption. Her case in this behalf .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

both the parties were using the same trade mark and logo simultaneously in there own rights. What is argued is that the respondent was not using the trade mark/logo or brand name of DRL but it was its own and therefore would not come within the mischief of para 4 of the Notification. 10. We would like to observe that if the aforesaid contention of the respondent is factually correct, viz. The respondent used the brand name as the owner thereof itself, and was not using the brand name as belongin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

39; 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 between such specified goods as satisfying the criterion provided in aforesaid condition 4 and the manuf .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ate the said mark, etc. with the manufacturer. We are supported in this view by series of judgments of this CourtIn Tarai Food Ltd. v. CCE, (2007) 12 SCC 721, the expression brand name was explained in the following terms: 7. The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacture which when used on a particular product would establish a connection between the product and the manufacturer. xx xx xx 9. Furthermore the definition of the words .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e person. To the same effect is the judgment of Supreme Court in CCE Vs. Grasim Industries ltd., (2005) 4 SCC 194 wherein this Court observed as under: 15.........In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms & .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urposes 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 n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect. 16. This Court has, in the case of Royal Hatcheries Pvt. Ltd. v. State of A.P., 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be unde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee will be debarred only if it uses 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. 14. All these judgments were taken note by this Court in a recent case in Nirlex Spares (P) Ltd. Vs. Commissioner of Central Excise, (2008) 2 SCC 628. On the facts of that case, the Supreme Court was of the opinion .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ny was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on record to show that the said hexagonal shape/design belonged to or was owned by the Marketing Company and thus they had permitted the assessee to use the same on the corrugated boxes. The Court also found that the hexagonal 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 Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y indicates that the assessee will be debarred only if it is uses 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 not on a fa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version