Prima facie case for waiver fails where similar brand names weaken stay relief in SSI exemption dispute.

In a predeposit and stay application concerning denial of small scale industry exemption for use of a similar brand name, the Tribunal found that the marks "Elac" and "Elac Excel" were different but sufficiently similar to weaken the applicants' claim for complete waiver at the interim stage. It treated the existence of a registered brand name in another concern's name as relevant to the prima facie assessment and declined full waiver of the duty demand. To protect the Revenue, the Tribunal accepted the applicants' undertaking not to utilise CENVAT credit of Rs. 30,93,454/- until disposal of the appeals and granted waiver and stay only for the balance dues.

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Issues: Whether the applicants had made out a strong prima facie case for complete waiver of predeposit and stay of recovery in respect of the duty demand arising from denial of small scale industry exemption on the ground of use of a similar brand name.

Analysis: The Tribunal noted that the brand name "Elac" stood registered in the name of another concern and that the applicants had applied for registration of "Elac Excel". It held that there was some force in the submission that "Elac" and "Elac Excel" were different, but the similarity was sufficient to show that the applicants had not established a strong prima facie case for total waiver of the dues at the stay stage. Considering the applicants' undertaking that CENVAT credit of Rs. 30,93,454/- would not be utilised till disposal of the appeals, the Tribunal found it to protect the Revenue by directing an undertaking and granting relief only for the balance amount.

Conclusion: Complete waiver was refused, but waiver of predeposit of the balance dues was granted and recovery of that balance was stayed during pendency of the appeals upon filing of the undertaking.

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