Brand name exemption turns on ownership: jointly usable family mark did not bar small scale relief.

Amortised cost of dies and moulds used in manufacture was includible in the assessable value of castings, and the duty demand on that issue was sustained. On the brand name issue, use of the mark "Anil" did not disentitle the assessee from small scale exemption because the mark was shown to be a family brand governed by a memorandum of understanding permitting use by all three family members. Exemption cannot be denied unless the Revenue proves that the brand name belonged to another person not entitled to use it, so the demand and penalty on that count were set aside.

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Issues: (i) Whether amortized cost of dies and moulds used in manufacture was includible in the assessable value of castings; (ii) Whether the use of the brand name "Anil" disentitled the assessee from small scale exemption on the ground that the brand name belonged to another person.

Issue (i): Whether amortized cost of dies and moulds used in manufacture was includible in the assessable value of castings.

Analysis: The assessee did not dispute that the amortized cost of dies and moulds used in manufacturing the castings was required to be added to the assessable value. The issue was covered by the Larger Bench decision relied upon in the order.

Conclusion: The duty demand on this count was sustained and the assessee was not entitled to relief on this issue.

Issue (ii): Whether the use of the brand name "Anil" disentitled the assessee from small scale exemption on the ground that the brand name belonged to another person.

Analysis: The brand name was shown to be a family brand governed by a Memorandum of Understanding under which all three family members were entitled to use it. In such a situation, the brand name could not be treated as belonging to another person for the purpose of denying exemption. The principle applied was that exemption cannot be denied unless the Revenue establishes that the brand name used by the assessee belonged to a third party not entitled to use it. The conclusion was supported by the view that a common or jointly usable trade mark does not attract the mischief of the exemption restrictions.

Conclusion: The duty demand and penalty on this count were set aside and the assessee succeeded on this issue.

Final Conclusion: The appeal succeeded only in respect of the brand name issue, while the duty demand based on includibility of amortized cost of dies and moulds was upheld, resulting in a partial allowance of the appeal.

Ratio Decidendi: For denying small scale exemption on the ground of use of a brand name, the Revenue must prove that the brand name belonged to another person who was not entitled to use it; where the mark is jointly usable under an agreement, exemption cannot be denied on that basis.

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