TaxTMI 
TaxTMI 
2001 (8) TMI 771
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....en a view that the nuts in question were roasted and salted and were different from the products as brought by the appellants. The roasted and salted nuts were having a distinct name, character, identity and usage as compared to the nuts before roasting and salting. Other contentions urged by the appellants were also not found to be acceptable. The learned Commissioner of Central Excise (Appeals) confirmed the view taken by the adjudicating authority who had imposed a redemption fine of Rs. 1 lakh. A penalty of Rs. 30,000/- each on the three appellants had been levied. Duty @ 8% adv. under sub-heading No. 2001.10 of the Central Excise Tariff was demanded/confirmed. 2. All the three appeals were heard on 6-8-2001 when Shri A.K. Jain, Advocate, submitted that all forms of edible fruits and nuts were classifiable under Heading No. 08.01 of the Central Excise Tariff and that roasted nuts were also edible units. He pleaded that in roasting no process of manufacture was involved, no new product emerged, and prior to roasting and after the roasting the nuts remained the same. Under Chapter 20 of the Central Excise Tariff, preparations of nuts were covered. It was his contention th....
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.... very carefully. I observe that roasted and salted nuts packed in unit containers and marketed under a brand name are correctly held to be classifiable under Central Excise Tariff sub-heading 2001.10 by the adjudicating authority as these nuts are having a distinct name, character, identity and usage as compared to the nuts before roasting and salting." 4. Under Heading No. 20.01, the preparations of vegetables, fruit, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter, were covered. It is provided in Note 1 of Chapter 20 that Chapter 20 covers only products which are prepared or preserved by processes other than merely chilled or frozen, or put in provisional preservative solutions, or dried, dehydrated or evaporated. In Note 2 of the said Chapter 20, it is provided that Chapter 20 does not cover fruit jellies, fruit pastes, sugar-coated almonds or the like in the form of sugar confectionery (Chapter 17) or chocolate confectionery (Chapter 18). These two Notes indicate the scope of the Chapter 20 - Note 1 in ....
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....containing or coated with vegetable oil, salt, flavours, spices or other additives were included in Heading No. 20.08 of the HSN. It is also provided that the products of Heading No. 20.08 of HSN are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers. 7. In Chapter 8, it is explained that Chapter 8 covers fruit, nuts and peel ot citrus fruit or melons (including watermelons), generally intended for human consumption (whether as presented or after processing). The processes referred to in HSN Chapter 8 viz chilling, freezing, cooking by steaming or boiling in water or containing added sweetening matter, drying, dehydrating, evaporating, freezing, dry preservations, such as by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions. Roasting is not the process mentioned in Chapter 8. The nuts, if subjected to the above processes alone, will remain classified under Chapter 8. However, if the nuts have been prepared or preserved otherwise than as provided for in the Headings of Chapter 8, then they are classifiable under Chapter 20. At page 55 of the HSN Explanatory Notes relating to Chapter 8, it i....
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....mport Tariff and allied classifications (refer para 13). The Apex Court observed "Unlike the Import Tariff, the BTN and the ITC there is no sub-classification attempted in the export entry." The judgment of the Apex Court clearly establishes that when roasted nuts and nuts not roasted are separately described in a Tariff, then their classification had to be determined separately. In the case of Northland Indus v. CCE, 1988 (37) E.L.T. 229 (T), the Tribunal had taken a view that the canned fruits in syrup were classifiable under sub-heading No. 0801.10 and not under sub-heading No. 2001.10 of the Central Excise Tariff. The products in the case before us are different and the roasted nuts were not the same as the canned fruits in syrups. In the case of Indian Tool Manufacturers v. CCE, Poona, 1984 (18) E.L.T. 527 (T), the Tribunal had held that the general term for a commodity in fiscal legislation covers that commodity in all its forms and varieties. In the present case, the roasted nuts are a different commodity than the nuts not roasted. Only unroasted nuts were classifiable under Chapter 8. In this connection, para 13 from the Supreme Court's decision in the case of Mila....
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....econd Schedule, the intention of the legislature must be given effect to. Shri Dholakia submitted that while the need to restrict imports necessitated a detailed enumeration and precise classification, the export duty is levied only on a short list of items. This may be so but this point of distinction is not enough to explain why, when an entry finds a place in the export tariff, it should not receive its normal interpretation but should receive one circumscribed by the entries in the import tariff or other classifications." 10. In view of the above discussion, on merits, we do not find that the appellants has any case. 11. As regards the use of the brand name 'COCO', it is on record that the brand name 'COCO' was owned by M/s. India International, a partnership firm. They continued to use that brand name. The adjudicating authority had concluded that the brand name 'COCO' was not of the present appellants, M/s. Coco, a private limited company, she has given the following reasons - (a) The Brand name 'COCO' belonged to M/s. India International and has been used by M/s. Coco Dry Fruit (India) Pvt. Ltd. prior to such assignment as has been ....
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....g small-scale industrial units. The appellate authority in para 8 had recorded as under - "8. The adjudicating authority has discussed in detail the reasons for rejecting the claim of appellant No. 1 that the brand name 'coco' belonged to them. She has given 6 reasons for rejecting these claims in her Order. The appellants have neither given the relevant documents to show that the subject brand names stood transferred in the name of appellant No. 1 nor have countered the afore-mentioned 6 grounds given by the adjudicating authority. The only document placed on record by them is a letter dated 24-6-98 issued by the Registrar of Trade Marks and addressed to M/s. Delhi Registration Service on the subject of request in Form No. 23 in respect of trade mark No 451300 in the name of appellant No. 1 and states that the subject-request had been allowed. There is no mention of trade mark 'coco' in this letter. Accordingly, I cannot take any cognizance of this document filed by the appellants along with the appeal memorandum." 13. The appellants, M/s. COCO had taken a plea that brand name 'COCO' had stood transferred/sold vide sale deed dated 18-2-1997. Earlier their plea was ....
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....egistration in his own name before trade mark registry. We find that in the present case there was no effective assignment as the owner continued to use the brand name. In the case of Veena Engineering Works v. CCE, Nagpur, 2000 (122) E.L.T. 417 (T), the Tribunal observed that a distinction has to be made between the permission to use a brand name of one person by another person and transfer or assignment of such a brand name. 15. As we have discussed above, there was no effective assignment in the present case and thus in the facts and circumstances of the case, the benefit of small-scale exemption has rightly been denied to M/s. COCO for using the brand name of another person. 16. For imposition of penalty, the reasons have been discussed by the adjudicating authority as pages 30-31 of the paper book. In para 9, the Commissioner of Central Excise (Appeals) had held as under - "9. In view of the above I hold that the confiscation of the seized goods, demand of duty on the same by the adjudicating authority is correct. I also find the redemption fine adjudged and the penalties imposed on appellants No. 1 and 3 to be in consonance with the offence committed by ....