1993 (11) TMI 200 - AT - Central Excise

Tribunal remands case for fresh decision on exemption eligibility under Notification 175/86.

GHAI ICE CREAM (P) LTD. Versus COLLECTOR OF CENTRAL EXCISE, KANPUR

GHAI ICE CREAM (P) LTD. Versus COLLECTOR OF CENTRAL EXCISE, KANPUR - 2004 (175) E.L.T. 723 (Tri. - Del.) Issues Involved:1. Eligibility for Small Scale Industries Exemption under Notification 175/86.2. Ownership and use of the brand name 'Kwality'.3. Admissibility of additional evidence.4. Interpretation of para 7 and Explanation VIII of Notification 175/86.Detailed Analysis:1. Eligibility for Small Scale Industries Exemption under Notification 175/86:The appellants, engaged in the manufacture of ice cream under the brand name 'Kwality,' claimed an exemption under Small Scale Industries Exemption Notification 175/86. The jurisdictional Assistant Collector denied this exemption, stating that the brand name 'Kwality' was owned by M/s. K.I.C. Food Products, New Delhi, who were not eligible for the exemption. This decision was based on para 7 of the Notification, which precludes the exemption if the specified goods are affixed with a brand name of another person not eligible for the exemption. The Assistant Collector's order was upheld by the Collector (Appeals), leading to the present appeals.2. Ownership and Use of the Brand Name 'Kwality':The core issue revolved around whether the appellants could use the brand name 'Kwality' for claiming the exemption. The appellants argued that the expression 'Kwality' was not an invented word and was used by multiple manufacturers. They provided evidence from the Trade Marks Registry showing various entities using the 'Kwality' brand, including pending applications and registrations by different manufacturers. The department, however, maintained that K.I.C. Foods, New Delhi, were the owners of the brand name 'Kwality,' and a disclaimer did not negate their ownership.3. Admissibility of Additional Evidence:The appellants sought to introduce additional evidence, including labels of competing manufacturers and letters from the Trade Marks Registry, to establish that multiple entities used the 'Kwality' brand. The Tribunal found that not all documents were fresh and that some were relevant for a proper disposal of the appeal. It was deemed necessary to consider this evidence to meet the ends of justice. The Tribunal allowed the additional evidence to be taken on record and remanded the case to the jurisdictional Assistant Collector for evaluation.4. Interpretation of para 7 and Explanation VIII of Notification 175/86:The Tribunal focused on the interpretation of para 7 and Explanation VIII of Notification 175/86, which define 'brand name' or 'trade name' and the conditions under which the exemption does not apply. The evidence provided by the appellants aimed to demonstrate that the 'Kwality' brand was used by multiple manufacturers, thereby challenging the department's assertion of exclusive ownership by K.I.C. Foods. The Tribunal emphasized the need for a thorough evaluation of this evidence to determine the appellants' eligibility for the exemption.Conclusion:The Tribunal allowed the additional evidence to be taken on record and remanded the case to the jurisdictional Assistant Collector for a fresh decision. The Assistant Collector was directed to evaluate the new evidence and decide on the appellants' eligibility for the exemption under Notification 175/86, in accordance with the law, after providing an opportunity for a hearing. The appeals were disposed of by remand to ensure a just resolution of the issues involved.