TMI Blog2002 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... er SEVEN FLOWER 4. Brilliantine White P. Jelly SEVEN FLOWER 2. VJBP (a) Complexion Cream MARY QUEEN (b) Intimate Vanishing Cream MARY QUEEN 2.2 He further, mentioned that the goods manufactured by them do bear their name and address; that there is another manufacturing concern, namely, M/s. Maja Cosmetics who manufacture cosmetics bearing the brand name "VI-JOHN"; belonging to Mrs. Mohinder Kaur; that the said concern avails of the benefit of exemption Notification; that the Revenue's case is that words 'VI-JOHN' in the names of the Appellants Nos. 1 and 2 were printed in bold and thus were appearing permanently on their product which establishes a close linkage with the Brand Name "VI-JOHN" and the Appellants; that in addition, the stylizing and embossing of letter "V" on the caps clearly reflects the connection between the products and the Brand Name "VI-JOHN"; that on account of these two reasons, it has been held that the goods manufactured by them shall be treated as bearing the brand name of another person making these goods ineligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carton and there is no such inscription on the carton; that thus goods are not being sold with letter "V" as the same is not nakedly visible and letter "V" cannot be taken as the brand name. He relied upon the decision in the case of Universal Gem (P) Ltd. v. CCE, Bombay - 1999 (105) E.L.T. 600 (T), wherein it was held that invented word "D" mentioned on the label does not establish any relationship between the word and the medicine. He also contended that only common product manufactured by the Appellants and M/s. Maja Cosmetics is shaving cream and the duty can be demanded at the most only in respect of that product and not in respect of any other products. Reliance has been placed on the decision in the case of CCE, Chandigarh v. Mahan Dairies - 2001 (133) E.L.T. 461 (T) and Elcon Components Pvt. Ltd. v. CCE, New Delhi, Final Order No. 31/2000-B, dated 16-1-2001 [2001 (129) E.L.T. 224 (T)]. The learned Senior Counsel also mentioned that as per the decision of the Supreme Court in the case of Union of India v. Paliwal Electrical Pvt. Ltd., 1996 (83) E.L.T. 241 (S.C.), the brand name of 'ineligible manufacturer' has to be affixed on the goods; that accordingly the absence of word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the definition of Brand Name in Explanation to Notification No. 140/83-C.E.' a brand name should be such that it should indicate a connection between the goods and a person using such name or mark in the course of trade; that from 1994 with the change in Notification, they had placed the words VI-JOHN prominently on their products under the pretext of their name; that by this act, a close linkage stands established between the Brand name and the manufacturers. The learned SDR relied upon the decision in the case of Fame Incorporated v. CCE, Mumbai II - 1999 (114) E.L.T. 989 (T), wherein it was held that goods prefixed with the words like "National", "Sanyo" are not eligible for Notification No. 175/86-C.E. He also relied upon the decision in Elymer Havells Electrics v. CCE, New Delhi - 1999 (35) RLT 793 (CEGAT) wherein the Appellants used Brand Name "Elymer Havells' for their product and brand name "Havells" belonged to another company, the benefit of Notification 175/86 was denied. Reliance was also placed on the following decisions : (i) Thio Pharma v. CCE - 1992 (60) E.L.T. 395 (T) (ii) Agrico Engg. Works v. CCE, Meerut - 1994 (72) E.L.T. 689 (T) (iii) B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available on the medicine. Even then the Tribunal held that the products were having brand names, Apitas, Ventol and Paltrim and "these brand names namely, Apitas, Ventol and Paltrim are most prominent on the packages and immediately strike the eyes of the person purchasing the goods rather than logos of the Appellants or of the marketing firm". Similar views were expressed by the Tribunal in the case of Emkay Investments Pvt. Ltd., supra. Further, in the case of Wockhardt Pvt. Ltd. (supra) the Tribunal held that mentioning the word "WOCKHARDT" does not mean use of brand name so as to make medicament a patent or proprietary medicament. The decisions relied upon by the learned SDR are not applicable to the facts in the present matters. For instance in the case of Elymer Havells Electrics (supra), the Appellants were using Brand name "Elymer Havells" and the brand name Havell's belonged to another Company whereas in the present matters both the Appellants are having their own brand names which are entirely different from brand name of M/s. Maja Cosmetics. In view of these facts and circumstances it cannot be said that the goods manufactured by the Appellants were bearing the brand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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