TMI Blog2006 (2) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the Tribunal upon taking into consideration the fact of the matter. If, however, the Tribunal comes to the conclusion or is of the opinion that further investigation in facts may be necessary, it may pass such order or orders as it may think fit and proper. Appeal allowed b way of remand. - Civil Appeal No. 4424 of 2004 - - - Dated:- 2-2-2006 - S.B. Sinha and P.K. Balasubramanyan, JJ. G.E. Vahanvati, Solicitor-General of India (P. Parmeswaran, Advocate, with him), for the appellant. R. Santhanan, Rajendra Singhvi and Ashok Kumar Singh, Advocates, for the respondent. [Judgment per : S.B. Sinha, J.]. - This appeal under Section 351(b) of the Central Excise Act, 1944 (for short "the Act") is directed in against a final judgment and order dated 22-1-2004 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi in Appeal No. 145/2004-B whereby and whereunder the appeal preferred by the Appellant herein was dismissed. 2.The basic fact of the matter is not in dispute. The assessee is one M/s. Hira Cement. It carries on business of manufacture of cement in the town of Raipur. It is a small-scale industry(SSI) being a proprietory concern of one Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson using such name or mark with or without any indication of the identify of that person." The Respondent herein state s : "Hira Industries Ltd. is thus a Limited company run by Shri B.L. Agrawal and other Directors whereas Hira Cement is a proprietorship concern owned by Shri Suresh Agrawal. Shri Suresh is the nephew of Shri B.L. Agrawal and that was the main reason for which both the units were held to be related parties. However, there is no other nexus or relation between Hira Industries Ltd. and Hira Cement. Shri B.L. Agrawal and Shri Suresh Agrawal are not even falls within the ambit of definition of Relatives as defined under Section 6 of the companies Act, read with Schedule 1A of the Act. The Hira Industries Ltd. has hired a portion of premises of Hira Cement for maintaining its Registered Office at Raipur and a small godown for keeping its goods. Hira Industries Ltd. used to purchase Cement from Hira Cement and for catering to the needs of its Raipur customers Hira Industries Ltd. used to keep those goods in the said godown. Accordingly, the Registered Office and Telephone Numbers of Hira Industries Ltd. and Office Address and Telephone Numbers of Hira Cement ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are separate juristic persons. An appeal thereagainst was preferred by the Appellant before the Tribunal and by reason of the impugned judgment the same was dismissed. 10.The Tribunal upon comparing the logos of both Hira Cement and Hira Industries Limited observed : "A perusal of the logo and brand name used by the respondents clearly reveals that their brand name is "BBC CEMENT", whereas the brand name of M/s. Hira Industries Ltd. is "HIRA CEMENT". Merely, because the logo is similar in both the cases, it cannot be alleged by the Revenue that the respondents are using the brand name of another person for the purpose of attracting the mischief of para 4 of the Notification. In the present matter, the Revenue has not established that the brand name used by M/s. Hira Industries Ltd. is used by the Respondents. There is a substantial force in the submissions of the learned Advocate for the respondents that the words 'Hira Cement' written on their bags of cement is the name of their company and not the brand name of M/s. Hira Industries Ltd ." 11.It is not in dispute that the Appellant in its notice dated 20th/22nd May, 1992 mentioned that a proceeding was initiated against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act. The said appeal was dismissed. An appeal preferred thereagainst by the Respondent before this Court was also dismissed. The contention of the Respondent in the aforementioned situation is that the said order dated 21-9-2001 attained finality and, thus, having been accepted by the Appellant, the present appeal was not maintainable. 14.Mr. G.E. Vahanavati, learned Solicitor General appearing on behalf of the Appellant would, at the outset, draw our attention to the fact that the decision of the Tribunal in Emkay Investments (supra) has expressly been reversed by a 3-Judge Bench of this Court in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Another [(2005) 1 SCC 526] stating : We have gone through the common order"15. passed by the Tribunal. In our view, the Tribunal has erred in not appreciating that to attract provision of clause 7 of Notification No. 175/86-C.E., it is sufficient that the product contained a trade mark/logo of another ineligible person which was fully satisfied in the instant case and whether the product also contained the brand name/trade name/logo of the manufacturer would not and cannot alter such position. Likewis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Hira Industries Limited. It was submitted that in fact the said Hira Industries Limited had been purchasing cement from the Respondent. 17.The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly. [See Tata Iron and Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 and Government of India Ors. v. Indian Tobacco Association [2005 (6) SCALE 683]. 18.In Commissioner of C. Ex., Trichy v. Rukmani Pakkwell Traders [2004 (165) E.L.T. 481 : (2004) 11 SCC 801], the expression " such brand name " was considered holding : The Tribunal had also held that under the"7. Notification the use must be of "such brand name". The Tribunal has held that the words "such brand name" shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said question once again. 23.Although some decisions to this effect have been cited by Mr. Santhanan, we are of the opinion that the matter should be considered afresh by the Tribunal upon considering all aspects of the matter. We refrain ourselves from going into the said question. We may, however, notice that a Bench of this Court in Government of W.B. v. Tarun K. Roy and Others [(2004) 1 SCC 347] stated : " Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar by holding : Shri B.B. Singh the"4. learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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