TMI Blog2008 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... n brand names/trade names viz. 'Intatex' and 'Intaco' which were affixed/ printed on its corrugated boxes. However, since it is a company registered as a Small Scale Industrial Unit, it was availing the benefit of exemption from payment of central excise duty under the notification, which grants such exemption to Small Scale Industrial Units. 4. The appellant, however, from 1st of April, 1990 started printing a hexagonal artistic design (alleged monogram) along with its brand names/trade names 'Intatex' and ' Intaco' on its corrugated boxes. On 30th of September, 1992, an investigation was carried out in the factory of the appellant. The investigating officers came to the conclusion that the appellant was making use of a monogram of a related person, namely, L.M.S. Marketing Company (in short 'the Marketing Company') as a brand name for the goods manufactured and cleared by it and therefore, the appellant was not entitled to exemption in view of paragraph 7 read with Explanation VIII of the notification for the period from 1st of April, 1988 and 30th of September, 1992. The investigating officers had also found that the Marketing Company to which the appellant sold its goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the visiting cards of the executives of the Marketing Company. Accordingly, the CEGAT, in essence, held that the hexagonal design was a brand name of the Marketing Company on a finding that although the said design was printed on the corrugated boxes and not on the goods in question, but since these goods were sold in the very same corrugated boxes, it could not be said that the goods did not bear the design merely because it did not appear on the goods. The CEGAT, however, as noted herein earlier, held that the excise duty would have to be paid from 1 st of April, 1990 onwards from which date the appellant had started using the monogram on the goods manufactured by it. This was so observed by placing reliance on the fact that the revenue had not brought on record any evidence to show that the monogram was used even before 1 st of April, 1990 and therefore, the amount of duty was reduced to Rs. 6,59,724/- along with the value difference of Rs. 10, 835/-. The CEGAT also approved the reasoning of the Commissioner in holding that the appellant and the Marketing Company were related persons. 7. We have heard the learned senior counsel for the parties and examined the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of the Marketing Company. After examining the Hexagonal shape/design affixed on the corrugated boxes of the appellant, we are unable to agree with the findings of the Tribunal that the said design was the brand name or trade name of the Marketing Company, which would be clear from the following admitted facts : (a) The said hexagonal shape/design was not at all owned by or belonged to the Marketing Company. The Marketing Company had no proprietary or other right over the said shape/design. (b) The Director of the Marketing Company was examined by the authorities with regard to the shape and design and in his statement, the Director of the Marketing Company has categorically stated as under : (a) "In reply, I have to state that M/s. L.M.S. Marketing Pvt. Ltd. does not have any brand name or symbol of its own." (b) "As stated earlier, M/s.L.M.S. Marketing Pvt. Ltd. does not have any brand name/symbol. The symbol referred is only a geometrical design and, therefore, question of our allowing use of this does not arise." (c) "We do not get any royalty and as stated earlier, we do not claim any proprietary rights on the design referred above." (Emphasis supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Marketing Company and the same was not even printed on the commercial documents like letterheads and sales invoices of the Marketing Company. It also appears from the record that the design printed on the letterheads and sales invoices of the Marketing Company was totally different. In any view of the matter, in view of the admitted position that the Marketing Company never came forward to say that the hexagonal design in fact belonged to them and they had permitted the appellant to use the same on their corrugated boxes, we are unable to agree with the findings arrived at by the Tribunal on the aforesaid question. Accordingly, we hold that the hexagonal design cannot be said to be descriptive enough to serve as an indicator of nexus between the goods of the appellant and the Marketing Company. Therefore, we hold that the alleged monogram cannot be said to be the brand name or trade name of the Marketing Company and such being the position and in view of the discussions made herein above, we hold that the benefit of exemption provided by the notification is available to the appellant. 14. That apart, in our view, the nexus between the hexagonal design and the Marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes 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 name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the benefit of the Notification would not be lost. We see no infirmity in this reasoning. We, therefore, see no reason to interfere." 15. It is an admitted position that the goods in question were manufactured by the appellant and the Marketing Company was its marketing agent. There is also no dispute that on the packings of the goods, the brand names of the appellant "Intatex" and "Intaco" were clearly and prominently printed. In between these two brand names, the hexagonal shape/design was also printed. Therefore, if the said hexagonal shape/design was also printed as the design of the appellants marketing agent, it could not be taken as a ground to deny the exemption to the appellant under the notification. In this connection, reliance can be placed on a judgment of this court in the case of P B Pharmaceuticals Pvt. Ltd. v. Commissioner of Central Excise [(2003) 3 SCC 599] wherein this court in paragraph 15 held as under:- "From a perusal of para 7 of Notification No. 175/86-CE, it is clear that the exemption granted by the notification is not applicable to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification. 16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case. 17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable. 18. For the reasons aforesaid, we are not in agreement with the views expressed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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