9911796707
TMI Blog2023 (8) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted search operations and found emergency lights of SUNCA brand, torches and other electronic items with brand name of SANYO and SUNNY and seized the said goods valued at Rs.51,220/- involving duty of Rs.8,195/-. In addition, certain documents were also seized with regard to removal of emergency lights, torches etc. The proprietor of the appellant firm in his statement recorded on the same day inter alia admitted that they were clearing emergency lights, torches etc. with the brand name of SUNCA and they had imported moulds from a Hongkong based company in the year 1996, namely, from M/s. Mikura Impex. The appellant(s) deposited Rs.1,00,000/- towards duty and thereafter the turnover of the firm was assessed. In respect of the seized goods, a separate show cause notice was issued and the original Authority confirmed the demand of duty of Rs.8,195/-; confiscated the goods with an option to redeem the goods on payment of fine of Rs.2,000/- and imposed penalty of Rs.2,000/-. Being aggrieved, the appellant(s) herein filed an appeal before the Commissioner (Appeals), who upheld the confiscation and the redemption fine and penalty imposed by the Authority. However, it was held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, learned counsel for the appellant(s) and Mr. Arijit Prasad, learned senior counsel for the respondent/Department and perused the material on record. During the course of submissions, our attention has been drawn to Notification bearing No.8/2002-Central Excise dated 01.03.2002, the relevant portion of which reads as under: "G.S.R. ( E ) In exercise of the powers conferred by subsection (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 8/2001-Central Excise, dated the 1st March, 2001, published in the Gazette of India vide number G.S.R. 133(E), dated the 1st March, 2001, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below (hereinafter referred to as the said Table) for home consumption of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of the aggregate of, - (i) the duty of excise specified thereon in the First Schedule to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the specified goods are manufactured in a factory located in a rural area. 5. This notification shall come into force on the 1st day of April, 2002. Explanation.- For the purposes of this notification,- (A) "brand name" or "trade name" means a brand name or a 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; (B) where the specified goods manufactured by a manufacturer bear a brand name or trade name, whether registered or not, of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader;" A similar notification had come up for consideration before this Court in the case of Commissioner of Central Excise, Delhi vs. ACE Auto Company Limited (2011) 1 SCC 666, wherein this Court considered whether the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that the assessee will be debarred only if it is 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." On noting the aforesaid observations, this Court has prescribed the test to be followed in order to debar an Assessee (which is a small scale industry) from the benefit of exemption under the relevant Notification. Paragraph 17 of the said judgment is of relevance to the case at hand and the same reads as under: "These observations bring out two significant aspects namely:- 1) As per the Notification, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department representative before CESTAT. It was contended that the brand name SUNCA, in fact, was a registered brand name of M/s. Sun Fat (Holding) Co. Ltd., which was a manufacturer of re-chargeable lamps and batteries and in the instant case the appellant was also in the same line of manufacturing, namely, the manufacturing of emergency lamps. Therefore, there was a usage of a well known brand name SUNCA by the appellant(s), although it was registered by M/s. Sun Fat (Holding) Co. Ltd., which did not make a difference to the denial of the benefit of exemption to the appellant(s). The said contention of the Department representative found favour with the CESTAT and on that basis the appellant(s) herein was denied exemption under the Notification in question. We have quoted in detail the observations made by this Court in the aforesaid three decisions. There is a golden thread of observations in all the three decisions, which state that the Assessee must satisfy the Authorities that there was no intention to disclose any business connection or that the user of the brand name was entirely fortuitous and on a fair appraisal of the marks if there was no such connection, the small s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
