TaxTMI 
TaxTMI 
2005 (7) TMI 480
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....tion in question. Accordingly, notice proposed to recover duty of Rs. 5,29,252/- in respect of the metal containers cleared during the period from 1-4-86 to 3-8-86. Notice also proposed imposition of penalty on the said assessee as also on its director along with confiscation of the seized goods.  3.In reply to the show cause notice, assessee contended that 'IC' was not the brand name or trade mark of M/s. India Containers Ltd. and the said marks were being put on the container, in an invisible fashion only to identify the containers manufactured for the said unit. The above plea was not accepted by the Additional Commissioner who vide his order dated 20-12-99 confirmed the demand against the assessee as also imposed penalties and confiscated the seized metal containers with an option to the appellant to redeem the same on payment of redemption fine. Being aggrieved with the said order, assessee filed an appeal there against before Commissioner (Appeals), who allowed the same by setting aside the order of the original adjudicating authority. Revenue is in appeal against the said order of Commissioner (Appeals) in A. No. 2719/2000-Mum.  4.As the duty of Rs. 5,29,252/....
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....s) has referred to various decisions of judicial as well as Quasi Judicial Authorities and also of the Hon'ble Supreme Court decision in the case of Astra Pharmaceuticals (P) Ltd. v. Collector reported in 1995 (75) E.L.T. 214 (S.C.). The appellate authority has observed as under : On examination of the letter head etc. it "5. will be seen that the letters 'IC' appears in all the products and even in letter heads. It would thus appear that the said letters 'IC' cannot be considered as brand name for the purpose of the said notification. In the case of Astra Pharmaceuticals (P) Ltd. v. Collector reported in 1995 (75) E.L.T. 214 (S.C.), the Hon'ble Supreme Court had observed as under : ".......... it would attract levy only if the container or packing carried out distinctive marks so as to establish the relation between the medicine and the manufacturer. But the identification of a medicine should not be equated with the product mark. Identification is compulsory under the Drug Rules. Technically it is known as house mark in Narayan's Book of Trade Mark and Passing off, the distinction between 'House Mark' and 'Product Mark' (Brand name) is brought out thus. In the Pharmaceut....
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....v. Saraswati Industries reported in 1999 (83) ECR 350 (Tri.) in which it was held that giving the name of the marketing company on the packing cannot be treated as a brand or trade name. The relevant portion of the Tribunal's decision is reproduced below for reference : "We have carefully considered the pleas advanced from the revenue. But we observe that the said expression 'GS' has been already accepted by the original authority as meaning 'Golden Super a' an unregistered trade mark of the respondent herein. That finding of the adjudicating authority has become final, because, the Revenue had not challenged the said finding of the adjudicating authority. Revenue in his appeal cannot turn back and say that the expression 'G' stands for "Govindram Shobharam". We, further held that the finding of the lower appellate authority that the expression 'marketed' by M/s. Govindram Shobharam and Co., Sangli, Calcutta, Gauhati, cannot be treated as a brand name or trade name. Hence we dismiss the appeal of Revenue." Further, in the case of 10. Raj Laxmi Enterprises v. CCE, Allahabad, reported in 1998 (102) E.L.T. 374 (Tribunal), the Hon'ble Tribunal held that SSI exemption - Brand Name....
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....eals) as also the Boards circular should not be adopted. In the grounds of the appeal, revenue has contented as under :- It is felt that "5. only point before Commissioner (Appeals) was whether the cans manufactured by M/s. K.P. Electricals were having brand name of M/s. India Containers Ltd. who were not entitled for small scale exemption under Notification No. 1/93, dated 28-2-93 the fact that M/s. India Containers Ltd. was not entitled for exemption Notification No. 1/93, dated 28-2-93 is not in any dispute. The Department has clearly made out that the cans manufactured at M/s. K.P. Electricals Pvt. Ltd. were of M/s. India Containers Ltd. and were physically affixed with the monogram 'IC' or printed cans and 3 indent marks or the plain cans. The Director and the Excise In-charge of M/s. K.P. Electricals Pvt. Ltd. and Plant Manager of M/s. India Containers Ltd. have clearly accepted the above facts and have not retracted their statements at any stage. They have also not denied that the monogram 'IC' and the three indent marks on the plain cans are not of M/s. ICL. Therefore the order passed by the adjudicating authority was proper and legal."  9.However, we find that t....