TMI Blog2014 (6) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-Mum - Final Order Nos. A/793-794/2015-WZB/EB - Dated:- 13-6-2014 - Shri P.R. Chandrasekharan, Member (T) and Anil Choudhary, Member (J) Shri V.K. Agarwal, Addl. Commissioner (AR), for the Appellant. Shri M.H. Patil, Advocate, for the Respondent. ORDER [Order per : Anil Choudhary, Member (J)]. - The Revenue is in appeal against a common Order-in-Appeal Nos. IND-I/158 159/2004, dated 26-3-2014 passed by the Commissioner of Customs Central Excise (Appeals), Indore-I, wherein the learned Commissioner (Appeals) was pleased to hold that the assessee is entitled to SSI exemption under Notification No. 1/2003-C.E. reversing the Order-in-Original. 2. The brief facts of the case are that the respondent M/s. Jain PVC Products Pvt. Ltd. (JPPL-in short), Sendhwa are manufacturers of PVC pipes and fittings under Heading No. 39.17 and the other respondent is Mr. Sanjay Bhandari, Director of JPPL. The Revenue investigated the matter as to use of brand name of another by JPPL and thereby availing wrong benefit of concessional rate of Excise duty under Notification No. 1/93-C.E. Accordingly, the officers of DG (Anti-Evasion) inspected the premises of one Jain Agency o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPE . The pipes received from all the three factories were kept together according to size. However, the stock ledger, delivery challan and inward book, etc., were maintained factory-wise. With regard to delivery of the goods to the various dealers, it was stated that the same was done as per direction from their Indore office and proper entries were made in books of account of the particular company, the goods of which were dispatched. 2.2 It is further observed in the Para 6 of the Order-in-Original that JPPL is a member of Jain Group of Companies and it used the brand name JAIN PIPE as well as mono of Jain Group of Companies on the PVC pipes and fittings manufactured by it. On scrutiny of the documents of respondent JPPL, it was seen that the company was incorporated in the year 1986 and in November, 1998 was renamed as Gauri Platiculture Pvt. Ltd. JPCL is another member of Jain Group of Companies, comprising of the companies like M/s. Jain Kemira Fertilizers Pvt. Ltd., M/s. Jain Rahen Biotech Ltd., M/s. Jain Irrigation System Ltd., etc. It was also noticed that subsequently, JPCL, JKFL and JRBL were amalgamated with JISL. Scrutiny of invoice and delivery challan of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, production, storage and removal or disposal of such PVC pipes in contravention of the said notification. The respondent - Director Mr. Bhandari was also required to show cause as to why not penalty be imposed under Rule 209A of the Central Excise Rules. 3. The respondents contested the show cause notice stating that in the sales godown, PVC pipes and fittings were received of JPPL, Sendhwa; JPCL, Sendhwa and JISL, Jalgaon, and all with the same brand name JAIN PIPE and logo of Jain Group. All the pipes received from three units were kept together without any company-wise demarcation. It was further stated that JPCL was merged with the JISL in 1993. JAIN PIPE brand name is not a registered brand name of the any company so far. Admittedly, the pipes of the respondent company bore the brand name JAIN PIPE - JPPL . Similarly, the pipes manufactured by both the companies were kept in a common godown indicating the name and address of these manufacturers. The words JAIN PIPE were used by them is not a brand name of another person, but it was their own brand name. JAIN PIPE cannot be termed as the brand name. Jain is a group and surname of many persons. The Directors of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re furnished along with returns and no case of misstatement is made out. The adjudicating authority has erred in holding that logo and marking belong to JPCL, Sendhwa, which is not the legal position. Jain group is a house mark of various Jain groups of companies such as JPPL, JPCL, JISL, etc. It was not a trade mark for PVC pipes and as regards the JAIN PIPE , it was not a mark of any other companies and that it indicated that the pipe was made by Jains . It was further contended that the Director of the respondent company belong to Jain community and to attract the mischief of the Para 4 of the said notification, it is necessary that the alleged mark should be a mark which belongs to some other company and not the assessee. As the alleged mark does not belong to any company in particular, nor there is any evidence in support of the Revenue s contention on the record. The respondents also rely upon the ruling of the Apex Court, namely :- (i) Tamil Nadu Housing Board v. Collector - 1994 (74) E.L.T. 9 (S.C.) (ii) Pushpam Pharmaceuticals Co. v. Collector - 1995 (78) E.L.T. 401 (S.C.) (iii) Cosmic Dye Chemical v. CCE - 1995 (75) E.L.T. 721 (S.C.). Further, ruli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 7. Accordingly, the impugned order is set aside and the appeals filed by the appellants are allowed with consequential relief, if any, as per law. 4. Being aggrieved, the Revenue has preferred appeal before this Tribunal on the ground among others that the learned Commissioner (Appeals) has erred in holding that the use of the words Jain Pipe cannot be called as brand name since the word Jain is common word cannot be construed as use of brand name and that too of another person, i.e., JPCL. Though JPCL also used the words in their products even prior to JPPL, this would not debar JPPL to use the same, as the words used are not registered or known in the trade as belonging to JPCL only. This finding of the Commissioner (Appeals) is not correct on the ground that explanation VIII to the said Notification provides - Brand name or Trade name shall mean a brand or 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 goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of duty under the said notification cannot be denied. It is further contended by the learned Counsel that although JPCL have claimed that they had started to use the logo and the words JAIN PIPE prior to the respondent JPPL, but they have not claimed the exclusive rights of the said brand nor in any way stated that JPPL was not entitled to use of the said mark/brand on its product. It is further contended vehemently that whole business plan and use of the brand name was in the knowledge and information of the Revenue throughout which is evident on the face of the record and accordingly, the show cause notice is ab initio void. There is no allegation of suppression of information or contumacious conduct in the show cause notice nor there is any categorical finding of the same. The learned Counsel further relies on the ruling of this Tribunal in the case of Minimax Industries - 2010 (261) E.L.T. 535 (Tri.-Del.), wherein the assessee had affixed a logo Minimax which was used and belonged to one M/s. Minimax Engineering Industries (MEI) and this fact was stated by the partner of Minimax Industries and confirmed by the proprietor of MEI. In the circumstances, finding was record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products were manufacturer of spices and pickles and the partners were both Jain started manufacture of spices and pickles from February, 1998 and marketed their goods in the brand name Ravi Masale . The Revenue was of the view that the brand Ravi masale belonged to one Shri Phulchand Jain, proprietor of Jain Gruh Udyog and, therefore, the assessee had manufactured the excisable goods bearing the brand name of another, hence, not eligible for SSI exemption for concessional rate. This Tribunal held it is the case of joint ownership brand Ravi Masale by the family members and each of the family member could use the brand name on the products manufactured by them and, accordingly, dismissed the appeal of the Revenue, holding that the assessee is entitled to SSI exemption. 6. Having considered the rival contentions, we hold that the logo of Jain Group and the words Jain Pipe do not belong to any particular company or manufacturer. Further, the respondents have used the words JAIN PIPE - JPPL , which identifies the goods with them only in particular. There is no categorical finding nor claim by any other manufacturer as to ownership of JAIN PIPE , brand name. We further hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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