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TMI Blog2005 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 5th September, 2001 wherein for a subsequent assessment year CEGAT followed the Judgment of the Full Bench of the Tribunal in the case of Prakash Industries v. Commissioner of Central Excise, Bhubaneswar, reported in 2000 (119) E.L.T. 30 and held that the manufacturer (same Assessee) is entitled to the benefit of Notification No. 1/93-C.E., dated 28th February, 1993. As parties are same and the point for consideration is the same both the Appeals are being dealt with by this common order. Hereinafter parties will be referred to in their capacity in Civil Appeal No. 3197 of 2000. 2.The question for consideration, in both these Appeals, is whether or not the Appellants i.e. M/s. Kohinoor Elastics Private Limited are entitled to the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed : Explanation IX. - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, [Code number, design number, drawing number, 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." 5.Clause 4 of the Notification is unambiguous and clear. It specifically states that the exemption contained in the Notification shall not apply to specific goods which bear a brand name or trade name (registered or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work basis or through some small party, freely use their brand/trade name on the goods and avail of the exemption. It is to foreclose such a thing that Clause 4 provides, in unambiguous terms, that the exemption is lost if the "goods" bear a brand/trade name of another. 6.Mr. V. Sridharan, learned Counsel for the Appellants placed strong reliance upon Explanation IX set out hereinabove. He submitted that the words "that is to say" qualify the words "Brand name" or "Trade name". He submitted that Explanation IX thus makes it clear that the brand name or the trade name must have been used so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark. He submitted that a brand/trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch cases the exemption is not lost. 7.It is on just such a reasoning that the Full Bench of the Tribunal has held that the exemption is not lost. We are afraid that there is complete misreading and a misunderstanding of the Notification. As set out hereinabove, Clause 4 of the Notification is clear and unambiguous. It says that the exemption is lost if the "goods" bear the brand/trade name of another. There are no other qualifying words. The term "goods" admittedly refers to "goods" which are otherwise excisable except for the exemption granted by the Notification. In this case admittedly "goods" are the elastic manufactured by the Appellants. As stated above Clause 4 does not provide that exemption is lost only for "goods (elastic)" whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no trade. Such a manufacturer may, as per the order of his customer, affix the brand/trade name of the customer on the "goods" manufactured by him. This will be for the purpose of indicating a connection between the "goods" manufactured by him and his customer. In such cases it makes no difference that the "goods" as manufactured did not reach the market. The "use" of the brand/trade name was "in the course of trade" of the manufacturer for the "purpose of indicating a connection between the goods and the customer who used the brand/trade name". Clearly in such a case the exemption is lost. Now in this case there is no dispute on facts. The "course of trade" of the Appellant is making elastics for specified customers. It is an adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication are clear and unambiguous, they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available. 8.It must be mentioned that reliance was sought to be placed on the meaning of the terms "brand name" and "trade name" as well as the words "indicating a connection in the course of trade" in the context of Trade Marks. In our view, the Notification has to be interpreted in the context in which the words are used in the Notification. Context in which such words are used under the Trade Marks Act or under principle governing trade marks have no relevance for purposes of interpreting such a Notification. 9.Under these circumstances, we would have dismissed Civil Appeal No. 3197 of 2000 and allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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