Brand name use by another unit defeats small scale exemption where common identity and trade connection are shown.

Small scale exemption was unavailable where the manufacturer used another person's brand name or trade name. The evidence showed identical branding, marking style and packing material, no manufacturer name on the goods or packing, and admissions indicating common management and a shared market identity. On that basis, the brand was treated as indicating a trade connection with the other unit rather than a merely descriptive mark. The later claim that the brand was used only from 01.06.2004 was rejected because contemporaneous records pointed to prior use. Demand, penalty and confiscation were upheld.

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Issues: Whether the assessee was using the brand name of another person so as to be disentitled to the benefit of the small scale exemption notifications.

Analysis: The exemption under the relevant notifications was unavailable where the manufacturer used a brand name or trade name of another person. The material on record showed that both units used the same brand name, the same style of marking, and the same packing material, with no name of the manufacturer disclosed on the goods or packing. The evidence also showed common management, a shared market identity, and admissions during investigation that the units formed a common group and used the same brand for their goods. In such circumstances, the brand name was not merely a descriptive mark but indicated a connection in the course of trade with the other unit. The subsequent plea that the brand was used only from 01.06.2004 was not accepted in view of the contemporaneous evidence.

Conclusion: The assessee was using the brand name of another person and was not entitled to the small scale exemption. The demand, penalty, and confiscation were upheld.

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