Brand name use and small scale exemption: mark resembling another's brand can defeat full waiver of pre-deposit.

Use of another person's brand name, or a mark resembling that brand, disqualifies a manufacturer from Small Scale Exemption Notification No. 8/2003-CE. The Tribunal noted that the exemption is unavailable where the goods are manufactured under such branding, and rejected the plea for full waiver of pre-deposit on the facts presented, including the financial hardship claim. Partial relief was granted by directing a pre-deposit of Rs. 25,00,000 while waiving the balance of duty, interest and penalties during pendency of the appeals.

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Issues: Whether the applicants were entitled to full waiver of pre-deposit in view of the allegation that the goods were manufactured under a brand name belonging to another person and, consequently, whether the benefit of the Small Scale Exemption Notification could be claimed.

Analysis: The applicants sought waiver of pre-deposit on the basis of prior use of the brand name and on the plea of financial hardship. The Revenue relied on the fact that the brand name was registered in the name of another unit and that the goods were cleared under a mark resembling that brand name. The Tribunal noted that under Notification No. 8/2003-CE, benefit is not available where goods are manufactured with the brand name of another person. It further relied on the principle that use of a mark resembling another person's brand name also disqualifies the manufacturer from the exemption. On the facts, the applicants had not made out a case for total waiver.

Conclusion: Full waiver of pre-deposit was denied. The applicants were directed to deposit Rs. 25,00,000, and waiver of the remaining duty, interest and penalties was granted during pendency of the appeals.

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