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2016 (2) TMI 535 - CESTAT CHENNAI

2016 (2) TMI 535 - CESTAT CHENNAI - 2016 (337) E.L.T. 250 (Tri. - Chennai) - Demand of duty on Branded jewellery - It was alleged in the show-cause notices that the appellant have affixed the mark Q and I on the jewellery and cleared without payment of duty. - it was alleged that the appellants were paying excise duty on the branded jewellery under the brandname Tanishq and paid duty @ 2% advelorem for the clearances made upto June 2006. Thereafter, appellant stopped using the brand name Tanishq .....

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exclusive outlets/showrooms clearly falls within the definition of "Brand name/Trade name of Chapter Note 12 and the Explanation to the Notification No.4/2005 dt.1.3.2005. Therefore by respectfully following the ratio of apex Court decision in the case of Grasim Industries and Australian Foods India Pvt. Ltd. [2013 (1) TMI 330 - SUPREME COURT] we have no hesitation to hold that jewellery manufactured and cleared by the appellants during the relevant period are branded jewelllery and chargeable t .....

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RDER Per R. Periasami The appellant filed appeal against the impugned order dated 27.2.2012 passed by Commissioner of Central Excise, Chennai III. 2. Revenue filed miscellaneous application for change of cause title as the appellant had opted under LTU, Chennai with effect from 13.4.2013 and sought change of the respondent s name from Commissioner of Central Excise, Chennai III to Commissioner of Central Excise & Service Tax, LTU, Chennai. Accordingly, we allow the miscellaneous application .....

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1.2009 demanding excise duty on the Branded jewellery. It was alleged in the show-cause notices that the appellant have affixed the mark Q and I on the jewellery and cleared without payment of duty. Further, it was alleged that the appellants were paying excise duty on the branded jewellery under the brandname Tanishq and paid duty @ 2% advelorem for the clearances made upto June 2006. Thereafter, appellant stopped using the brand name Tanishq and started using the mark Q and I and the jewellery .....

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te interest and also imposed penalties of ₹ 4,98,33,980/- and ₹ 1,40,77,360/- respectively under Rule 25 of CER. Hence the present appeal. 5. The learned Senior Advocate Shri Arvind P. Datar appearing for the appellant briefly explained the background of history of levy of excise duty on branded jewellery. He submitted that the period involved in both the show-cause notices are from September 2005 to July 2009. He submits that levy was introduced for the first time on 1.3.2005. Subse .....

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t affixing the brand name they cleared by another brand name GoldPlus . He submits that once they decided not to affix their brand name they are not liable for excise duty. Whereas in the impugned order duty has been demanded on the ground that the letters Q and I embossed on the reverse of the jewellery have to be treated as brand name. He further submitted that the general practice in the jewellery trade that jewellery will have identification mark to indicate the name of the person who made t .....

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ograph of the jewellery where at the end letters AEI has been embossed and explained AE represented job worker and I represents identifying GoldPlus category of jewellery. 6. He drew attention of the Board s Circular dated 29.12.2005 and submitted that the instruction of the Board s circular has not been followed by the adjudicating authority. As per the circular, Board has categorically directed the field formation that if the Commissioner has any doubt and is not in a position to decide whethe .....

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missioner should have referred to the Board through the Chief Commissioner as they have contested and also informed the authority that they were not using the brand name TANISHQ with effect from 1.7.2006 and were clearing unbranded jewellery. He drew attention to the Grounds of Appeal para 3 at page 8 and submits that the Board s instruction is binding on the adjudicating authority. He relied on the following decisions:- (a) Paper Products Ltd. Vs. CCE - 1999 (112) ELT 765 (b) Union of India Vs. .....

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s accepted the fact that they have stopped embossing the logo TANISHQ from 1.7.2006 which is clearly recorded para 17 of the impugned order. He drew attention to Board s Circular dated 28.3.2005 where the Board has clearly clarified that excise duty is leviable on branded jewellery only if the brand name or trade name is indelibly affixed or embossed on the article of jewellery itself as per Chapter 71 and such affixing or embossing of brand name or trade name on the jewellery would amount to ma .....

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ed jewellery and it will not attract tax. in the present case, he submits that AE and AM is an identification on the part of the job worker. He drew attention to para 2(ii) of circular where an example was given clearly explaining that when a jeweller sends an article of jewellery to a customer, puts a distinct sign/mark/initials etc on the jewellery. This is again for the purpose of identification so that if the jewellery is returned to the jeweler they will recognize as their own jewellery. In .....

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ame. He submits that Commissioner has not given any finding on the Board s circulars. 9. He drew the attention of the Bench to Circular dated 25.3.2011 and he referred to para 5.2.1 wherein Board once again clarified and reiterated again when the levy was re-introduced to branded jewellery where use of alphabets or numbers (only stylized) cannot be registered as a brand name or trade mark. This is again for identification when the customer returns of the jewellery. Board clarified that it will n .....

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will not be treated as branded jewellery and will not be liable to excise duty. 10. He reiterated paragraph 36 at pages 29, 30 and 31 and also paragraphs 37, 38, 39, 40 and 42 of the Grounds of Appeal and submits that indicating alphabet such as Q or I along AM or AB does not indicate communication between product and the company as a brand. Usage of these letters does not give any impression or relation between the company and the products. Once they have given up affixing their logo TANISHQ , .....

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ciation Vs. Collector of Central Exise - 1990 (49) ELT 33 (Mad.) (b) Commissioner Vs. ITC Ltd. - 2002 (142) ELT A79 (SC) 11. He also submitted that in trademark, a single letter of alphabet cannot be registered under Trademarks Act. He submitted that case law relied by the adjudicating Commissioner CCE Vs. Australian Foods (India) Ltd. 2013 (287) ELT 385 (SC) is distinguishable and not applicable to their case as the Hon ble Supreme Court in the above case held it has no relation to ruling on th .....

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e submitted that the first show-cause notice dated 3.3.2009 is hit by limitation. He produced correspondences with the Department from the date when they decided not to use the brand name on the jewellery in the paper book Volume I and submitted that they duly intimated on 19.9.2005 and subsequently Department sought series of clarification which was gain replied. Subsequently, the audit carried out investigation on 24.2.2009. He drew attention to para 7 of show-cause notice which is at page 130 .....

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. Vs. CCE 2005 (188) ELT 149 (c) Pushpam Pharmaceuticals Company Vs. CCE 1995 (78) ELT 401 (d) Continental Foundation JV Vs. CCE 2007 (216) ELT 177 Therefore, he submitted that there is no suppression of facts and hence no penalty can be imposed. 13. The learned Special Counsel Shri Shridharraman appearing on behalf of Revenue submitted his paper book and written synopsis on the Grounds of Appeal and the citations relied and reiterated the findings of the adjudicating authority. He drew attentio .....

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within the normal period. He submits that even in the first show-cause notice, the entire demand is not time barred. 14. On merits, he reiterated the findings of the adjudicating authority and submits that the appellants are manufacturing branded jewellery and they have two brands TANISHQ and GOLDPLUS . From 2006, the same jewellery of TANISHQ was GOLDPLUS were cleared without logo, instead they started affixing and marking on the jewellery with letter Q and I . They have replaced TANISHQ brand .....

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GoldPlus brand jewellery and Q is related to identify TANISHQ brand which is a costly brand of jewellery compared I . He relied on the decision of the Tribunal in the case of CCE, Coimbaore Vs. Metriplex Pumps Ltd. 2011 (272) ELT 685 wherein this Tribunal has clearly held that use of single letter K on the pumps as well as on the cover of the pumps. He drew attention of the Tribunal s stay order wherein this Tribunal has discussed the use of letter Q which also refers to guarantee for its qualit .....

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hority has correctly imposed the penalty. He relied on the following decisions:- (a) D.K. Arrawala Vs. CCE, Mumbai 2011 (138) ELT 684 (b) Marsha Pharma Pvt. Ltd. Vs. CCE, Vadodara 2009 (248) ELT 687 (c) Hind Nippon Rural Industries Ltd. Vs. CCE, Bombay 2011 (136) ELT 1289 (d) Granite (India) Ltd. Vs. CCE, Coimbatore 1997 (92) ELT 84 (e) CCE Vs. Grasim Industries Ltd. 2005 (183) ELT 123 (SC) (f) CCE, Chennai Vs. Australian Foods (India) Pvt. Ltd. 2013 (287) ELT 385 (SC) (g) Commissioner of Custom .....

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bt whether Q and I is a brand name, the course left is to refer to the Board. Further, he submits that the letter Q is marked or affixed only for identification not for sale of the goods with brand name. it is a general trade practice to put any letter or inscription on the back of the jewellery by the manufacturer. The department s reliance on the Tribunal s decision in the case of Metriplex Pumps Ltd. (supra) is not applicable and he also submits that the Hon ble Supreme Court s decision in th .....

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xcise as "Branded jewellery" or otherwise and (2) whether the demand is hit by limitation and the demand confirmed and penalty imposed on the appellants is sustainable or otherwise. Appellant M/s.Titan Industries Ltd. are registered with Central Excise for manufacture of branded jewellery. There is no dispute on the fact that appellant is engaged in the manufacture and sale of jewellery with their brand "TANISHQ" which is one of the largest jewellery brand. When excise duty w .....

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e same. 18. On the preliminary issue raised by the appellant that the adjudicating authority not followed the directions of Board's circular dt. 29.12.2005 and decided the issue without referring to the Board, we find from para-3 of the said circular, it is stated that when the Commissioner is in doubt and not in a position to decide whether a particular jewellery is branded jewellery or not, such cases should be referred to the Board. In the present case, we find that the adjudicating autho .....

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manufactured and cleared by appellant is a branded jewellery and chargeable to excise duty or not. It is pertinent to see the history of levy of excise duty on gold jewellery. Articles of gold jewellery are classifiable under Chapter 71 of Central Excise Tariff Act and it was fully exempted from excise duty by Notification 6/2002 dt. 1.3.2002 (S.No.171). 20. In 2005-06 Budget, the government imposed excise duty of 8% on branded articles of jewellery of Heading 7113 of Central Excise Tariff. The .....

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corresponding Central Excise Notification No.4/2005 (Sl.No.14) and 5/2005 (Sl.No.171) both dt. 1.3.2005 were issued. The relevant chapter Note 12 & 13 of Chapter 71 are produced as under :- "12. In this Chapter, "brand name" or "trade name" means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented words or any writing which is used in relation to a product for the purpose of i .....

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ng or sub-heading or tariff item Description of goods Rate under the First Schedule Rate under the Second schedule (1) (2) (3) (4) (5) 14. 7113 Article of jewellery on which brand name or trade name is indelibly affixed or embossed on the articles of jewellery itself. 2% - Explanation.- For the purposes of this notification, 'brand name or trade name' means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signatur .....

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indings of the adjudicating authority that appellants were duly registered with Central Excise and paid excise duty on the branded jewellery cleared under the brand name "TANISHQ". Subsequently the appellants decided not to use the logo of "TANISHQ". Instead, they started using the letter "Q" for jewelleries which were earlier cleared under the brand name "TANISHQ" and under letter "I" for the jewelleries cleared under the brand name "GoldPl .....

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y it is not chargeable to duty as branded jewellery and heavily relied the Board's circular No.354/38/2011-TRU dt. 2.3.2012 and Circular No. B-1/1/2005-TRU dt. 4.3.2005. Board's circular dt. 2.3.2012 is reproduced as under :- Branded precious metal jewellery Levy of Excise duty Clarifications Instruction F. No. 354/38/2011-TRU, dated 2-3-2012 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Clarification regarding .....

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n abbreviation thereof or a mark which has a connection with such brand name either on the jewellery or article itself or on the packing such as the jewellery box or pouch or even on the warranty card or certificate of quality. Such goods will clearly be treated as branded and will be liable to duty. 2. It is learnt that based on the said clarification some enquiries have been initiated by the departmental agencies seeking to demand duty on such articles of jewellery which are packed in boxes, p .....

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self. It has been argued that accordingly only such jewellery where brand name or trade name is indelibly affixed or embossed on the articles of jewellery itself should attract excise duty and duty should not be charged on the articles which do not themselves bear such marking but which are packed in a jewellery box or pouch bearing a trade name or brand name or in whose case, the warranty card or certificate of quality issued at the time of sale bears a trade name or brand name. 3. The issue ha .....

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trade/brand name or any such mark or symbol or even a number which is cross referred with such trade/brand name (not being a house mark used by jewellers for identification of jewellery at the time of exchange/resale) is indelibly marked or embossed. If such brand name is not affixed or embossed on the jewellery or article itself but appears on the packing such as the jewellery box or pouch or even on the warranty card or certificate of quality, such goods will not be treated as branded jewelle .....

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7113 of the Central Excise Tariff. The duty is leviable only if the brand name or the trade name, as defined, is indelibly affixed or embossed on the article of jewellery itself. In this context, relevant extracts of Finance Ministers budget speech is reproduced below : "...expensive and premium jewellery is now manufactured and sold under alluring brand names. On such branded jewellery, I propose to levy an excise duty of 2 per cent. I may clarify that there is no levy on unbranded, jewell .....

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sign/initials, etc. on the article of jewellery. This is only to identify that the article of jewellery was received from a particular goldsmith, etc. This is not branded jewellery and will not attract the tax. (ii) "ABC jeweller", when it sells articles of jewellery to customers, puts a distinctive sign/mark/initials etc. on the jewellery. This is again for the purpose of identification so that when the jewellery is returned to ABC jewellers, they will recognize the jewellery as their .....

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erved that hallmarking is the accurate determination and official recording of the proportionate content of precious metal in gold. Hallmarks are thus only official marks used as a guarantee of purity or fineness of gold jewellery, and cannot be treated as 'branding' for the purposes of the excise levy. 4. Whether a particular name or mark or symbol etc. is a brand name or not is a matter of fact, and can be ascertained as how the name is understood in commercial parlance. In the jewelle .....

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cretary (TRU) Tele No.23092236 As seen from the above Board circulars, the Government has clarified that excise duty is leviable on articles of jewellery where brand name or trade name is indelibly affixed or embossed on the articles of jewellery and duty is not leviable on any jewellery which do not themselves bear any marking of trade name or brand name. The appellants, in the present case, embossed the mark or symbol or letter 'Q" and "I" on the jewellery and it is in conne .....

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jewellery. They have only replaced the logo of brand/trade name "Tanishq" and 'GoldPlus" with marking "Q" & "I". We find from the appellants letter dt. 6.7.2006 addressed to the Deputy Commissioner of Central Excise, Hosur which is also reproduced in para-19 of the OIO wherein they have clearly admitted that the product will have a mark for the purpose of identifying that it is their product. 23. It is relevan to see that the definition of brand name o .....

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to letter "Q" and the logo "GoldPlus" is replaced by letter "I" and the product line is also maintained separately from the manufacture stage till the clearance and sale. The appellant's plea that letters "Q" and "I" are embossed only for the purpose of identification and not for the purpose of brand name is beyond acceptance as the appellants are one of the reputed branded jewellery manufactures in India manufactured and cleared branded jew .....

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ose of identification is not justified and not applicable to the appellant s case. Further, we find that definition of brand name given in Chapter Note 12 and the Explanation to the notification are similarly worded to the definition of brand name given in the SSI exemption notification. The Hon'ble apex Court in the case of CCE Trichy Vs Grasim Industries Ltd.(supra) and held laid down the principle which clearly held that a name or writing need not be a brand name or trade name in a sense .....

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n 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 understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company. It is thus .....

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the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment as follows : Mere indication of the foreign company s name does not create any association in the course of trade between the goods and the foreign company. There would be no purpose in indicating the foreign company s name in relation to the product except to indicate a connecti .....

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ct from ITL group and Technical licencee of ITL were also printed. The Tribunal, following its earlier decisions, held as follows : 6. In the facts of the present case, we are of the view that the expression ITL was used to convey the name of the company and not as a trade mark. It showed that the technical know-how was obtained from Instrument Techniques Pvt. Ltd. The expression A quality product from ITL group also would not mean that the product was manufactured by Instrument Techniques Pvt. .....

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any. The use of the words A quality product from ITL group clearly showed an intention to show a connection between the product and the ITL group. These words indicated that the quality of the product was the same as that of a product of ITL group. If use of such words did not disentitle a party from the benefit of the Notification, we fail to understand what sort of words would disentitle a party. The decision of the Tribunal in this case is clearly erroneous and will stand overruled. 19. In th .....

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ld be sufficient. Considering the wordings used in Chapter Note 12 and the Explanation to the notification 4/2005 are identical to the wordings of definition given under SSI notification the ratio laid down by the the Supreme Court is squarely applicable to the present case. 24. Appellants relying BHEL Ancillary Association case and CCE Vs ITC case (supra) are distinguishable as in the present case gold jewellery is embossed with the indelible mark of "Q" & "I" which is t .....

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efore it is evident that the purpose of affixing of indelible embossing of Q and I marks on the jewellery manufactured and cleared by the appellant is to indicate the connection between the product and the appellant company. The use of "Q" & "I" on the jewellery is to show the product is from Titan Industries and it established the intention to show the connection between the jewellery and M/s.Titan Industries. In addition to mark Q and I , the appellant also embossed the .....

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f Q & I clearly satisfies the definition of branded jewellery defined in Chapter Note 12 of Chapter 71 of CET and the Explanation to the notification No.4/2005 and chargeable to excise duty. The demand of the differential duty confirmed by the adjudicating authority in the impugned order is liable to be upheld. 25. Notwithstanding to our above findings, we also find from the findings of adjudicating authority that these jewelleries were cleared and marketed by the appellant s own "Tanis .....

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CCE Chennai Vs Australian Foods India (P) Ltd. (supra) clearly held that brand name physically manifestation on the goods is not a compulsory requirement. The apex Court held that brand name cannot be reduced to a label or sticker embossed on the goods and held that the test of whether the goods branded is an indication of connection conveyed in the course of trade between the goods and the person using the brand name. The relevant paragraphs of the apex court's decision in the case of CCE C .....

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a brand or trade name. The above judgment makes no such observation and was delivered on a completely different set of facts and circumstances. It involved a case of undergarments manufactured by a producer P2, which used branded elastics produced by P1, and retained the brand name of P1 in the final product. P2 was denied exemption under the same notification involved in the present case because of the appearance of brand name of another i.e. P1, not covered by the same notice. P2 argued that t .....

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t the term specified goods is used without any caveats and hence rejected the contention that some consideration should be given to the fact that P1 was used only as an input in the making of the final product of P2. It is in this background that this Court observed that the requirement of the notifications must be adhered to strictly and cannot be diluted by substituting the term specified goods with the nature of goods or the manner of disposal. In case the specified goods clearly exhibits a b .....

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arly a branded goods; to stretch this principle to imply that one not marked by any brand is an unbranded goods, is untenable. In case a scrutiny of the goods itself fails to reveal a brand name then the search must not end there; one ought to look into the surrounding circumstances of the goods to decipher, if it is in fact branded or not. 15. We are of the opinion that such an approach is necessary to maintain the essence of the concept of a brand name. A brand/trade name must not be reduced t .....

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nd name appears in entirety or in parts or does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a connection is conveyed in the course of trade between such specified goods and some person using the mark. Highlighting this principle, this Court in Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders - (2004) 11 SCC 801 = 2004 (165) E.L.T. 481 (S.C.) observed thus :- 6. The Tribunal had also held that under the notification the us .....

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number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the notification. In this case, admittedly, the brand name or trade name is the word ARR with the photograph of the founder of the group. Merely because the registered trade mark is n .....

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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 different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification. 8. It is settled law that in order to claim benefit of a notificat .....

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sustainable. It is accordingly set aside. 17. As aforesaid, once it is established that a specified goods is a branded goods, whether it is sold without any trade name on it, or by another manufacturer, it does not cease to be a branded goods of the first manufacturer. Therefore, soft drinks of a certain company do not cease to be manufactured branded goods of that company simply because they are served in plain glasses, without any indication of the company, in a private restaurant. The goods w .....

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presumption arises in favour of such goods being branded goods of the specified store. Such a presumption can be rebutted if it is shown that the specified goods being sold is in fact a branded goods of another manufacturer. Thus, branded potato chips, soft drinks, chocolates etc. though sold from such outlets, will not be considered to be goods of such outlets. However, all other goods, sold without any appearance of a brand or trade name on them, would not be deemed unbranded goods; to the co .....

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rs would carry different hues in different scenarios. There can be no single formula to determine if a goods is branded or not; such determination would vary from case to case. Also, our observations must be limited to this notification and not supplanted to other laws with similar subject matter pertaining to trade names and brand names. 20. Applying the said principles on the facts at hand, we fail to see how the same branded cookies, sold in containers, can transform to become unbranded ones, .....

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ng circumstances; yet went on to argue that the tissues and plates they were served on did not bear the brand of the specified goods. Either the environment of the goods can be looked into, or cannot be taken into consideration at all. Once it is established, as in the instant case, that the environment of the goods can be gone into to construe if it is branded or not, we do not see why the environment of the goods should be limited to the plates and tissues, on which they are served. As aforesa .....

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a clear connection with the brand name, in the course of assessee s business of manufacture and sale of cookies under the brand name Cookie Man . They continue to be branded cookies of Cookie Man and hence cannot claim exemption under the SSI Notification. The ratio of the above apex court decision is squarely applicable to the facts of the present case as these gold jewelleries are sold in exclusive Tanishq show rooms and the invoices/bills and the certificate of authenticity etc. bear the app .....

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stralian Foods India Pvt. Ltd. (supra) we have no hesitation to hold that jewellery manufactured and cleared by the appellants during the relevant period are branded jewelllery and chargeable to duty. 26. As regards the limitation issue, it is clearly brought out in the findings of the adjudicating authority that appellants have cleared branded jewellery on payment of central excise duty and suddenly on their own decided not to affix registered brand name of Tanishq and GoldPlus and chosen a nov .....

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