Small scale exemption and brand name use: exemption cannot be denied unless the mark is shown to belong to another person.

Small scale exemption under Notification No. 8/2003-CE is denied only when the goods bear a brand name belonging to another person and indicating a trade connection. The Revenue had to prove that the appellants were using someone else's brand name, but the record did not establish ownership by any identifiable third person or borrowing of the mark. Where the same expression is not shown to belong to another person and is available for use by any assessee, exemption cannot be refused merely because another entity also uses it. On that basis, the appellants were entitled to the exemption and the duty and penalty demands were unsustainable.

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Issues: Whether the appellants were entitled to small scale exemption under Notification No. 8/2003-CE dated 1st March 2003 when the goods were alleged to bear a brand name belonging to another person.

Analysis: The exemption is denied only where the brand name used on the goods belongs to another person and indicates a connection in the course of trade. The Revenue had to establish that the appellants were using a brand name of somebody else. The cited decisions did not assist the Revenue because they involved registered, admitted, or clearly borrowed brand names, unlike the present case. The record did not establish ownership of the mark by any other identifiable person, nor did it show borrowing of the brand. The settled position is that where a brand name is not shown to belong to another person and is free for use by any assessee, exemption cannot be denied merely because the same expression is used by someone else.

Conclusion: The appellants were entitled to the exemption and the duty and penalty demands could not be sustained.

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