2023 (2) TMI 436 - AT - Central Excise

Tribunal rules in favor of Mosquito Repellent Spray manufacturer in brand name dispute case

The Tribunal ruled in favor of the appellant, a manufacturer of Mosquito Repellent Spray, in a case concerning eligibility for exemption under ... SSI exemption - use of brand name/ trade mark of other person - case of the Revenue is that since the name and logo of DRDO/DRDE is on the products and this name and logo do not belong to the appellant, it should be treated as if the goods are being sold under the trade mark of DRDO/DRDE - benefit of N/N. 8/2003-CE - HELD THAT:- It is undisputed that the goods were being sold under the brand name “MosGuard” on the basis of the technology provided by DRDO/DRDE since the technology was provided by DRDO/DRDE. As required under the MOU, it was indicated on the product that they were manufactured with the technology of DRDO/DRDE. The goods were not sold under the brand name of DRDO or DRDE. The name MosGuard is the brand name of the appellant and not of DRDO/DRDE. On the facts of this case, it is not correct to say that the goods were being sold under the brand name of DRDO. “MosGuard‟ is the brand name of the appellant and not that of DRDO/DRDE. However, the goods were manufactured with the help of technology transferred by DRDO under MOU and this fact is mentioned on the products along with the logo of DRDO. This cannot be considered as trade mark in any sense of the term - In this case, the indication of the logo with respect to trade is MosGuard which is owned by the appellant itself. The logo and name of DRDO on the product indicate relationship between the DRDO and the technology of the product. They do not indicate a relationship between DRDO and trade of the product. The trade of the product is indicated by the word MosGuard which is not owned by DRDO. The appellant was entitled to the benefit of exemption under Notification No. 8/2003-CE. The original authority was correct in dropping the proceedings in pursuance of the show cause notice and the Commissioner (Appeals) was not correct in confirming the demand along with interest and imposing penalties - Appeal allowed. Issues:- Eligibility for exemption under Notification No. 8/2003-CE based on branding and trade name usage.Analysis:1. The appeal challenged an order by the Commissioner (Appeals) allowing the Revenue's appeal and setting aside the original order by the Assistant Commissioner regarding the eligibility of the appellant for exemption under Notification No. 8/2003-CE. 2. The appellant, a manufacturer of Mosquito Repellent Spray, was audited by the Assistant Commissioner (Audit) who observed that the appellant manufactured products under a Memorandum of Understanding (MOU) with DRDE/DRDO, requiring the mention of technical knowhow from DRDE/DRDO on the products. The Assistant Commissioner (Audit) contended that the appellant was not eligible for exemption due to branding conditions specified in the notification. 3. A show cause notice was issued alleging that the appellant's use of DRDO's name and logo on the products made them ineligible for exemption. The original authority dropped the proceedings, but the Commissioner (Appeals) upheld the demand for duty, interest, and penalties. 4. The Tribunal deliberated on whether the appellant was entitled to the exemption under Notification No. 8/2003-CE. The key issue was whether the products were sold under the brand name of DRDO/DRDE or under the appellant's brand name, 'MosGuard,' as indicated on the products based on the technology provided by DRDO/DRDE. 5. The Tribunal examined the MOU requirements and a clarification from DRDO stating that the appellant's brand name, 'MosGuard,' was owned by the firm and not associated with DRDO/DRDE. The Tribunal concluded that the use of DRDO's logo and name on the products did not imply selling under DRDO's brand name, as 'MosGuard' was the appellant's brand name, indicating the trade of the product. 6. By analyzing the notification's definition of 'brand name' or 'trade name,' the Tribunal determined that the appellant met the exemption criteria as the indication of DRDO's logo and name was related to the technology transfer, not the trade of the product under DRDO's brand. Therefore, the Tribunal set aside the Commissioner (Appeals) order, restoring the original authority's decision in favor of the appellant.