TMI Blog2018 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the present case - decided in favor of appellant. Registration of the Brand Name ‘SEN & PANDIT’ - Revenue’s entire case is based on the premise that M/s SPPEL was the owner of the Brand Name used by the appellant No. 1 - Held that:- The very fact that M/s SPPEL had applied for an altogether different set of Brand Names/ Trade Marks has been ignored while passing the impugned Order. The lower authority seems to have been misled while concluding that M/s SPPEL was the owner of Brand Name i.e. ‘SEN & PANDIT’. If that be the case then we must hold that the Learned Commissioner’s observation is devoid of substance - The allegations in the first Show Cause Notice, as confirmed in the Order-in-Original, fall flat when one bears in mind the correct factual position - it cannot be countenanced that simply by virtue of having applied for registration, M/s SPPEL had become the legal owner of the purported Brand Name ‘SEN & PANDIT’. It had not been shown that M/s SPPEL had the exclusive right to use the afore-mentioned expression to the exclusion of others, much less the appellant no. 1 - decided in favour of the appellants and against the Revenue. Whether the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng activity. On this count, Central Excise duty demand of ₹ 24,21,120/- was confirmed for the period December, 1999 to March, 2004, along with interest and equivalent penalty against the appellant No. 1 under various provisions of the Act. The appellant No. 3 was also subjected to personal penalty of ₹ 25,000/- under Rule 209A of the erstwhile Central Excise Rules, 1944 read with Rule 26 of the Central Excise Rules, 2001/ 2002. 3. In brief, the facts of the case are: (i) That the appellant No. 1 is a concern of the Sen Pandit Group and engaged, inter alia, in the business of manufacturing voltage stabilizers, servo voltage stabilizers, battery inverters, electrical transformers etc. at its factory located at Sonarpur. The appellant No. 1 availed the benefit of SSI Exemption notifications issued from time to time. At its Sales cum Service Centre at 16B, Lake View Road, Kolkata it mostly performed post-sale services, quality control works, trading, affixation of stickers etc. The appellant s sister concern being M/s Sen Pandit Power Electronics Pvt. Ltd. (in short SPPEL ), also a part of the Sen Pandit Group, manufactured products similar to those of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 209A of the erstwhile Central Excise Rules, 1944 read with Rule 26 of the Central Excise Rules, 2001/ 2002. (v) That after submission of a common reply to the aforesaid Show Cause Notices, personal hearing was held. The Learned Commissioner thereafter passed a consolidated Order-in-Original dated 23.03.2007 and confirmed the demands by holding, inter alia, as follows: First Show Cause Notice a) SEN PANDIT was a Brand Name, as reflected by repeated use of the said expression in the background of the specimen labels/stickers affixed on all the products of appellant no. 1. b) Statements of Shri Brij Mohan Jha (Manager, Operations), appellant No. 2 (Director), appellant No. 4 (Director), appellant No. 3 (Senior Inspector) and of other officers of the appellant No. 1 indicated that the expression SEN PANDIT was being used as a Brand Name. c) The appellant No. 1 was not the owner of the said Brand Name as it had never applied for its registration. On the other hand, the said Brand Name was owned by M/s SPPEL. This was evident from Annexure 32A of the Show Cause Notice which was a copy of M/s SPPEL s letter dated 06.12.2004 showing that it had actually appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were, at best, decorated logos showing the full name of appellant No. 1 in a stylish manner along with particulars like AMP , INPUT , OUTPUT SL. NO. etc. (iii) Appellant No. 1 had applied for registration of its Brand Names such as SPEL, POWERSYS , SEN PANDIT Electronics Pvt. Ltd.-SPEL . This was a clear pointer that SEN PANDIT was never regarded as a Brand Name. (iv) M/s SPPEL had applied for registration of a different set of logo/ expression i.e. SEN PANDIT preceded by a Devise (SP). The Learned Commissioner s observation that M/s SPPEL owned the Brand Name (SEN PANDIT) was totally misconceived. Further, the purported applications for registration filed by M/s SPPEL were still pending. The same is evident from the Departmental communications with the Trade Mark Registry, particularly the letter dated 10.08.2004 written by the Deputy Registrar of Trade Marks, Trade Mark Registry, Mumbai. (v) The purported Brand Name was, at best, a house-mark falling outside the ambit of the definition of Brand Name contained in the relevant SSI exemption notifications. (vi) In any event, even if the disputed mark/expression was a Brand Name, then also the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of feedback resistance etc. had been undertaken solely for quality control purpose and/ or repair of damaged products, which was non-routine in nature. 8. The Learned counsel further thereafter submitted that the purported statements of various vendors relied upon in the Show Cause Notices as well as in the Order-in-Original suffered from numerous inherent contradictions and confusing remarks. In absence of any corroborative evidence, the appellant No. 1 could not have been saddled with liability on the basis of unreliable statements recorded during investigations, as done in the impugned Order. The Department had relied on piecemeal averments and failed to appreciate the context in which the purported statements of the vendors had been given. For instance, Sri Prabir Malakar had acknowledged through his answer to question No. 3 in his statement dated 20.08.2002 that re-setting of pre-set, fitting of feedback resistance etc. had been performed only if necessary . Another vendor, Sri Gautam Das in his statement dated 21.08. 2002, had categorically answered question No. 8 by mentioning that he did not know exactly the further processes performed on the purported semi-finish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2004 are barred by limitation? Before we delve into the factual matrix of the matter, it would be worthwhile to refer to the definition of Brand Name as given in the relevant SSI Exemption Notifications, which runs as under: brand name or trade name shall mean 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 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 goods and some person using such name or mark with or without any indication of the identity of that person; (Emphasis added) - Vide Notification Nos. 8/99-C.E. dated 28.02.1999, 8/2000-C.E. dated 01.03.2000 etc. From the aforesaid definition it is clear that only such marks would constitute Brand Names/Trade Marks which are used for indicating or so as to indicate a connection in the course of trade between the goods on which exemption is sought and some other person using such name or mark. The manner of use of such Brand Name/Trade Name as also the intention of the supposed user are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Furthermore, we find that the expression SEN PANDIT is the first part of the appellant No. 1 s full name, which also happens to be a part of the full name of M/s Sen Pandit Power Electronics Pvt. Ltd. The said expression cannot be held as descriptive enough to indicate a connection in the course of trade between the products of appellant No. 1 and its sister concern, M/s SPPEL. In fact, the said label indicates the actual manufacturer s name, name of the product, model No., voltage capacity etc. The sticker/label produced before us merely creates an impression that the product in question is manufactured by M/s Sen Pandit Electronics Pvt. Ltd., the appellant No. 1. No person can be penalized for using one s own name on one s products, notwithstanding that a third party may have been equally entitled to use the said name/ part of name. This is especially so when the name/ mark is not shown to have belonged to any particular person. As authorities for such propositions we rely on the decisions of Bhalla Enterprises , supra and Pethe Brake Motors Ltd. v. Commissioner reported in 2005 (179) ELT 57 (T). The appeal filed by the Department against the latter decision was dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not associate their products with some other person, quite like the present appellant No. 1. Expanding on the meaning of the terms that is to say contained in the relevant notification, the Hon ble Apex Court was pleased to hold that Brand Name/ Trade Name was to be understood in context of the words which followed. Even a signature or an invented word or any writing was sufficient to constitute Brand Name when used in relation to the product for the purpose of indicating a connection between the product in question and the other person. Similarly, we could not read the Tarai Food Ltd . decision as having laid down any ratio which helps the Revenue s case. In this decision, the Hon ble Supreme Court was pleased to hold that Brand Name connoted such a mark, symbol, design or name, which was unique to the particular manufacturer , and when used on a particular product established a connection between the product and the manufacturer. The principles laid down by the said decision, if applied correctly to the case at hand, do not detract from our conclusions noted above. We have already held that SEN PANDIT appearing on the purported labels/stickers was not descriptive e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEN PANDIT . 18. There is another aspect of the matter which deserves a brief discussion. The Learned DR had argued that M/s SPPEL is the legal owner of the Brand Name since it had applied for registration of the said Brand Name being SEN PANDIT . This argument, however, does not inspire confidence. It is not a fact that simply by having applied for registration, ownership rights were conferred on the appellant No. 1 s sister concern. We had specifically enquired as to whether the registration applications filed by M/s SPPEL, which have been shown as pending, had been subsequently registered by the Trade Mark Registry. No affirmative reply was received in this regard. This apart, we have pointed out that M/s SPPEL had applied for a different set of logos/ expression which are not identical to the one for which SSI Exemption is sought to be denied. Thus, it cannot be countenanced that simply by virtue of having applied for registration, M/s SPPEL had become the legal owner of the purported Brand Name SEN PANDIT . It had not been shown that M/s SPPEL had the exclusive right to use the afore-mentioned expression to the exclusion of others, much less the appellant no. 1. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol works etc. were being undertaken at the aforesaid premises. We quote below the relevant parts of the said statement dated 09.04.2003: .. Q.5:- You have mentioned earlier that the office of M/s Sen Pandit Electronics Pvt. Ltd. at 16B, Lake View Road, KOL-29 is a service centre and sales office, please define what short of work is done in your service centre and also what facility of servicing/ manufacturing are available in that section of office. Ans: - In the office at 16B, Lake View Rd, Kolkata-29 a portion is separated and marked as Service Centre where some people are used to sit and are engaged in the job of all shorts of Repairing Work required to be done for the Voltage Stabilizers, Inverters, Servo Controlled Voltage Stabilizers already sold to different Customers within the Warranty period and beyond of Warranty period. In this Service Centre Quality Control Work is also being done for Voltage Stabilizer, Servo Stabilizer, and Inverter etc. The Equipment and tools like voltammeter, variac, soldering iron, solder etc. along with all other required equipment are available in the Service Centre. While answering question no. 2 in the abovementioned statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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