TMI Blog1999 (10) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise duty amounting to ₹ 11,46,524.07 P. and imposed a penalty of ₹ 50,000, holding that benefit of Notification No. 175/86 was not (sin) as they were affixing their excisable goods with the brand name of M/s. Havells Industries and M/s. Elymer Electric Controls (India) Pvt. Ltd. He relied upon the decision in the case of Parle Products Ltd. AIR 1972 SC1359. 3. Shri J.P. Kaushik, the learned Advocate, submitted that the appellants were using the brand 'Elymer Havells' since 1981 and it was their established brand, though unregistered, in the electric meter market; that the brand is nothing but first two words of the name of their firm Elymer Havells Electrics; that the said brand name has not been reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been reproduced) Due to misprint in the certified copy, Paragraph Nos. have been serial numbered from No. 4 onward 4. The learned Advocate, further, mentioned that Havell's logo is printed by them only on packaging as their goods are marked by M/s. Havells Industries; that this fact has been mentioned in para 8 of the show cause notice issued to them; that printing of logo of marketing company does not make the notification No. 175/86 not available. He relied upon the decision in the case of Palsons Drugs and Chemical Industries v. CCE, Calcutta-I 1998 (74) ECR 607 (T) and DCI Pharmaceuticals P. Ltd. v. CCE, Goa 1999 (32) RLT 956 (T) wherein it was held that mere projection of the name of the marketing company does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... magination, these can be considered identical merely because the words in capital AGI have been used within an oval shape figure. Finally, he submitted that larger period of limitation is not invokable as their unit is visited by the officers and the fact of their using the brand name Elymer Havell's was always within the knowledge of the Department; that they had not changed their working pattern with the amendment in notification No. 175/86 w.e.f. 1.10.1987; that for these reasons, no penalty was also imposable on them. 5. Countering the arguments, Shri M.C. Sharma, learned CDR submitted that as held by the Supreme Court in UOI v. Paliwal Electricals (P) Ltd., the framework of policy and objective designed to be obtained shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reason d'etre for granting the exemption disappears. The learned CDR also mentioned that the fact that brand name is affixed on a product different from the product belonging to the owner of the brand owner is not relevant as para 7 of the notification does not qualify that the brand name should be used for the same products. He relied upon the decision in the case of Khanna Industries v. CCE, Chandigarh. He also relied upon the decision in the case of Inter City Cable System (P) Ltd. v. CCE wherein the Tribunal did not extend the benefit of Notification No. 175/86 though the products manufactured by the brand name owner and the appellants were different. 6. He finally mentioned that the decision in the case of Pillaiyar Soda F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been put by them in a rectangular which is not the case with the brand owner. The Appellants have relied upon the decision in Pillaiyar Soda Factory case, supra, to support their contention that the trade mark should be the 'same' and not deceptively similar or deceptively identical. We observe that in the said case the Hon'ble High Court was interpreting the phrase Common trade mark aerated water and in that context it was observed that the expression implies aerated waters which are sold under the same trade mark or under the same brand name in more than one factory, whether belonging to one or more manufacturers. In the present matter the issue involved is whether the appellants were affixing the goods with a brand n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Antenna Electronics (P) Ltd., who were not eligible for the exemption under the said Notification. The Madras High Court in Bell Products case held as under:-- ...Can the petitioner be held to be entitled to the exemption merely because the products of the units are different notwithstanding the common or identical brand name used for the products. For the purpose of excise duty and application of the rates, it is the totality of the clearance in respect of different products when exemption is sought to be claimed under the Notification in question. The Notification apart from stipulating the mere user of the brand or trade name of another person, does not carry any further limitation on the said use that it should be in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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