TMI Blog2019 (10) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in the course of trade between the jute bag and some person using such name or mark. The markings are by compulsion of law only in order that Governmental authorities involved in the PDS may identify and segregate the aforesaid jute bags. This being the case, it is obvious that there is no brand name involved in the facts of the present cases. Revenue s appeal being de-void of merit, is accordingly rejected - appeal dismissed - decided against Revenue. - Excise Appeal No.1345 of 2011 with E/CROSS/151/2011 - A/86189/2019 - Dated:- 21-6-2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Satish Hasija, Supdtt. (AR) for the Appellant None for the Respondent ORDER PER: D.M. MISRA None present for the Respondent. Heard the learned A.R. for the Revenue. This is an appeal filed against the Order-in-Appeal No.P-II/AV/44/2011, dt.06.05.2011, passed by the CCE (Appeals- II), Pune. 2. Briefly stated the facts of the case are that the Respondents are engaged in the manufacture of Printed Polyethylene Rolls/Sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the short issue involved in the present appeal for consideration is that whether the Respondents are eligible to the benefit of exemption Notification No.8/2003-CE, dt.01.03.2003, when manufactured and cleared Printed Polyethylene Rolls/Sheets bearing brand names of various producers of milk viz. M/s Rajarambapu Patil Dudh Sangh (Krishna Dudh), M/s B.G. Chitale, Bhilwadi, M/s Sangamner Taluka Sahakari Dudh Utpadak Prakriya Sangh, Sangamner, M/s Sahyadri Dudh Sangh, Shinoli, Tal. Chandgad, M/s Mahalaxmi Sahakari Dudh Utpadak Sangh Ltd, Kolhapur, M/s Kolhapur Zilla Sahakari Dudh Utpadak Sangh Ltd, Kolhapur. The learned Commissioner (Appeals) has confirmed the demand on merit, following the ratio laid down in Kohinoor Elastic Pvt. Ltd s case (supra). However, the learned Commissioner (Appeals) has dropped the demand, observing that extended period of limitation cannot be invoked in the present case, as no suppression of facts is involved on the part of the Respondent. We find that the issue has been considered recently by the Hon ble Supreme Court in the case of RDB Textile Mills Vs CCE Kolkata-IV - 2018 (359) ELT 433 (SC). In the said case, the Assessee are manufacturer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. We would also like to reproduce the following observation from C.C.E. v. Bhalla Enterprises [C.C.E. v. Bhalla Enterprises, (2005) 8 SCC 308] : (SCC p. 311, para 6) 6. The apprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded. The notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the PDS. Neither do such markings enhance the value of the jute bags in any manner nor is it the intention of the appellants to so enhance the value of jute bags, which is necessary if Excise duty is to be imposed. This flows from the expression ...for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark . In the present case, the markings on the jute bags are not for the purpose of indicating a connection in the course of trade between the jute bag and some person using such name or mark. The markings are by compulsion of law only in order that Governmental Authorities involved in the PDS may identify and segregate the aforesaid jute bags. This being the case, it is obvious that there is no brand name involved in the facts of the present cases. 19. Equally, it is clear that circulars that are issued by the Ministry of Finance are binding on the Department of Central Excise, there being no judgment by this Court laying down the law contrary to such circulars. This is a wellsettled proposition as laid down in Paragraph 30 of CIT v. Trans Asian Shipping Services (P) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used by any person other than the person using that brand/trade name. As set out hereinabove once a brand/trade name is used in the course of trade of the manufacturer, who is indicating a connection between the goods manufactured by him and the person using the brand/trade name, the exemption is lost. In any case it cannot be forgotten that the customer wants his brand/trade name affixed on the product not for his own knowledge or interest. The elastic supplied by the appellants is becoming part and parcel of the undergarment. The customer is getting the brand/trade name affixed because he wants the ultimate customer to know that there is a connection between the product and him. 22. The facts of these cases are far from the facts in Kohinoor Elastics (supra). In Kohinoor Elastics (supra), it was found that, as a matter of fact, the customer wanted the brand name affixed on the product because he wanted the consumer to know that there is a connection between the product and him. This is very far from the facts of the present case, in that, as has been held by us above, it is clear that the markings required on the jute bags are compulsory, being required by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
