TMI Blog2016 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Hon’ble Supreme Court in Meghraj Biscuits [2007 (3) TMI 5 - SUPREME COURT OF INDIA] also has held that registration with the trade mark registry cannot be the sole criteria for allowing or denying SSI exemption. We find that the Hon’ble Apex Court in the case of Stingen Immuno Diagnostics [2015 (6) TMI 155 - SUPREME COURT OF INDIA] has held that there should be a connection/nexus between the brand name, the product, the person and the use of same/similar brand name belonging to someone else, for denying the SSI benefit. On a careful consideration of the aforesaid judgments of Hon’ble Apex Court, one has to come to a conclusion that if someone is manufacturing any product bearing a brand name of another person, benefit of SSI exemption is not available to such person, which emphasis that there should be a connection/nexus between the brand name, the product, the person and the use of brand name belonging to someone else, for denying the SSI benefit. In the present case, the Dept. has proceeded mainly based on the Hon’ble Apex Court judgment in Rukhmini Packkwell (supra) and there was no occasion for the Adjudicating Authority to examine other judgments of Hon’ble Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court at different point of time and, therefore, the benefit of doubt should go to the Appellants. Therefore, we are of the view that it cannot be held that there was an attempt on the part of the Appellants to suppress any facts and they have acted on a bona fide belief that the brand name quality is owned by them; therefore, they are eligible for SSI exemption under relevant Notification. We, therefore, hold that the entire demand covered under Appeal No. E/3158/2006 and demand beyond normal period of one year in Appeal No. E/1236/2009 is barred by limitation and, therefore, not sustainable. Cum-duty benefit - Held that:- since the Adjudicating Authority has already granted the benefit of cum-duty in the Order impugned in the first appeal (E/3158/2006) and the same has not been challenged by the Dept. Therefore, we are of the view that the benefit of cum-duty should be extended to the appellants in remaining matters also. This issue also needs to be looked into by the Adjudicating Authority in the denovo proceedings. Imposition of penalty - appellants were under a firm belief that they are the owners of brand name quality in the form in which it is used on their product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny SSI exemption for the period 2000-2001 to 2002-2003, which was confirmed by the Commissioner, vide Order-in-Original dated 31.07.2006 and the Appellants filed an appeal (No. E/3158/2006) against the same before this Tribunal. Thereafter, periodical SCNs issued were confirmed by the adjudicating authorities and upheld by Commissioner (Appeals) and the appellants have filed appeals before this Tribunal against each of those Orders. The denial of exemption and confirmation of demands was mainly based on the grounds that the exemption shall not apply to specified goods bearing a brand name or trade name, whether registered or not of any other person; that the brand name Kwality was owned by and registered in the name of M/s. Pure Ice Cream Co. Pvt. Ltd., Bombay and M/s. Kwality Ice Cream Pvt. Ltd., Calcutta for Ice Cream is not in dispute; that the issue is fully covered by the Hon ble Supreme Court decision in CCE v/s Rukmani Pakkwell Traders, reported in 2004 (165) ELT 481 (SC), which has been endorsed by Hon ble Apex Court in the case of CCE v/s Bhalla Enterprises, reported in 2004 (173) ELT 225 (SC); that if a manufacturer uses the registered brand name of another person, even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries, reported in 2009 (233) ELT 379 (T) and Kanjoos Fine, reported in 2006 (193) ELT 77 (T) has held that the same brand name can be for different products and SSI exemption cannot be denied; that registration of trade mark by someone would not entitle to that person to interfere with or restrain the use of identical trade mark by any other person, provided that the said person, or his predecessor, has continuously used their trade mark from a date prior to the registration of trade mark by the third party; that the Appellants have been using the brand name quality continuously since decades and, hence, registration of brand name quality in favour of any other person would not affect the right already vested in them based on Section 34 of the Trade Marks Act, 1999, which is also supported by the Tribunal judgment in the case of Mankoo Machine Tools, reported in 2012 (284) ELT 515 (Tri-Del); to support their contention that the appellants have been manufacturing Cakes and Pastries bearing the brand quality since decades and in the market quality is known as a brand name for Cakes Pastries manufactured by the appellants our attention was drawn to the certificates/ letters from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the father and his brother of the present Partner, Shri Parvez Saghir Ansari; that after the demise of his father and division/partition in the family, Shri Parvez Ansari started his firm under the name style M/s. Jamal Bakery since 1987 and continued to manufacture Cakes Pastries under the brand name quality and, therefore, they are eligible for SSI exemption based on Hon ble Supreme Court judgment in the case of Kali Aerated Water Works, reported in 2015 (320) ELT 692 (SC); that the valuation in first appeal is done based on certain hypothetical average prices; that the Appellants were offering 17% discount upto 1.4.2003 and 28% discount w.e.f. 1.4.2003 and this discount ought to have been reduced from the turnover arrived at by the Dept.; that when the Commissioner granted cum-duty benefit in the Order dated 31.7.2006, which is not challenged by the Dept. said benefit should have been extended in all other cases also; that entire demand covered under Appeal No. E/3158/2006 and major portion of demand covered under Appeal No. E/1236/2009 is barred by limitation in the absence of any conscious and deliberate suppression of facts; that the brand name quality used by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said claim; that the appellants cleared the goods under brand name quality without taking registration and without informing the Department; therefore extended period is very well invocable in the present case. The learned AR has also relied upon various judgments. 5. We have considered the rival submissions and perused the records. 5.1 We find certain force in the submissions made on behalf of the appellants that they have not used the brand name or logo of anybody else and the brand name quality used by them on their products, in the manner and style, is their own brand name, which is different from the brand name/logo used by M/s. Pure Ice Cream Co. for their Ice Cream. This is also clear from a visual inspection of the labels produced before us by the learned Counsel. We find that the Hon ble Apex Courts judgment in Rukhmani Pakkwel (supra) relied upon by the Dept. has been considered by the Hon ble Apex Court in the case of Bhalla Enterprises (supra) and held that if the use of others brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, then the benefit of exemption would be available. We also find that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them on their products was registered in the name of someone else, including M/s. Pure Ice Cream Co. Therefore, we are of the view that the Adjudicating Authority s findings in Para 34 of the impugned Order dated 31.7.2006 that the appellants had suppressed from the Department their manufacture of quality branded products, despite the fact that this brand did not belong to them, lacks credence and the Dept. have not brought any evidence to support such an allegation. We find that even today the Appellants are claiming that the brand name quality, in the manner style used by them, belongs to them alone and nobody else. We also find that the demand covered in Appeal No. E/1236/09, beyond the normal period one year also cannot sustain, as the fact of using the disputed brand name quality on Cakes Pastries was well within the knowledge of the Department when first SCN dated 3.5.2005. Therefore, the Dept. cannot allege suppression to invoke extended in subsequent SCN pertaining to appeal No. E/1236/09, which is supported by catena of judgments of Hon ble Supreme Court cited by the appellants. We also note that there had been confusion with regard to brand name issue and consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
