TMI Blog2005 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... nch. We clarify that this is only for the purpose of ascertaining whether the Circular would prevail or the Judgment of this Court would prevail. If, ultimately it is held by the Constitution Bench that Judgments of this Court prevail, then Civil Appeal No. 3197 of 2000 will stand dismissed and Civil Appeal No. 1469 of 2002 will stand allowed without any further Orders. If, however, the Constitution Bench takes a contrary opinion, then of course, the reverse will follow. In either case there will be no order as to costs. - Civil Appeal No. 3197 of 2000 - - - Dated:- 4-8-2005 - S.N. Variava and Tarun Chatterjee, JJ. [Order]. - Civil Appeal No. 3197 of 2000 is by the manufacturer against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi ( CEGAT ) dated 24th December, 1999 wherein it has been held that the manufacturer is not entitled to the benefit of Notification No. 1/93-C.E., dated 28th February, 1993. Civil Appeal No. 1469 of 2002 is by the Commissioner of Central Excise against the judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 not) of another person. It is settled law that to claim exemption under a Notification one must strictly comply with the terms of the Notification. It is not permissible to imply words into the Notification which the Legislature has purposely not used. The framers were aware that use of a brand/trade name is generally to show to a consumer a connection between the goods and a person. The framers were aware that goods may be manufactured on order for captive consumption by that customer and bear the brand/trade name of that customer. The framers were aware that such goods may not reach the market in the form in which they were supplied to the customer. The framers were aware that the customer may merely use such goods as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants of the brand/ trade name could never be considered to be for purposes of indicating a connection in the course of trade between the goods and the person/s using the brand/ trade name. He submitted that the use of brand/trade names on elastics, which are not sold in the open market, does not convey to the ultimate customer that the elastics have any connection with the owner of the brand/trade name. He submitted that the customer only gets the final product i.e. the undergarments and thus the customer only associates the brand/trade name with the undergarment and not with the elastics. He submitted that in such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers. It is an admitted position that the Appellants are affixing the brand/trade name of their customers on the elastics. They are being so affixed because the Appellants and/or the customer wants to indicate that the goods (elastic) have a connection with that customer. This is clear from the fact that the elastics on which brand/trade name of A is affixed will not and cannot 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. Of course the intention of the customer is not relevant for the purposes of this Notification. This is being mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
