Brand name exemption turns on use of another's mark, while later trade mark registration may require factual reconsideration.

Small scale exemption was unavailable where goods were manufactured under another person's brand name, because the decisive test under the notification is use of another's trade name or brand name, not whether the same goods fall within that person's registered trade mark. The purpose of the exemption was to benefit units without the commercial advantage of an established brand. A later claim of trade mark registration could not be decided without factual examination; where it had not been considered below, that plea required remand for factual adjudication and for its effect on the demand and limitation issues.

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Issues: Whether the goods manufactured under a brand name used by another person were ineligible for small scale exemption under the notification, and whether the assessee's later trade mark registration claim required factual reconsideration.

Analysis: The notification denied exemption where the goods were manufactured under the brand name of another person. The Court relied on earlier decisions holding that the nature of the goods covered by the registered mark was immaterial so long as the trade name or brand name of another person was used. It further noted that the object of the exemption notification was to grant relief only to units not having the advantage of a brand name. On the alternative plea based on later trade mark registration, the Court found that the plea required factual adjudication and had not been examined below, so the Tribunal had to consider it on remand.

Conclusion: The challenge to denial of small scale exemption failed, but the matter was remitted for consideration of the factual plea relating to trade mark ownership and its effect on the demand and limitation.

Ratio Decidendi: For exemption notifications denying benefit where goods are made under the brand name of another person, the decisive test is the use of another's brand name, not whether the same goods are covered by that person's registered trade mark; a later registration plea may require factual examination if it was not previously adjudicated.

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