TaxTMI 
TaxTMI 
2010 (3) TMI 710
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Section 11AB of the Central Excise Act, 1944 and had also imposed penalty of equal amount of duty against the company and further penalty of Rs. 90,000/- under Rule 25 of the Central Excise Rules, 2002 on the ground of contravention relating to the goods seized at their premises. Besides penalty of Rs. 20,00,000/- and Rs. 15,00,000/- has been imposed against the Directors namely Shri Ashok Sharma and Sh. Dheeraj Sharma respectively under Rule 26 of the said Rules as also there is order for confiscation of the goods valued at Rs. 5,89,273/- seized at the premises of the company while giving option to redeem the same on payment of fine of R.s. 2,50,000/-and also the goods worth Rs. 18,29,209/- seized at the premises of different traders are ordered to be redeemed on payment of fine of Rs. 10,00,000/- alongwith appropriate amount of duty. The said order was passed pursuant to the adjudication of the show cause notice which was issued to the appellants on 7-1-04 in relation to the period from February, 2001 to July, 2003. 3. The appellants are engaged in the manufacture of Bathroom and Sanitary fittings classifiable under Chapter Heading 8481.80 of the Schedule to the Central ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made on 16-10-2003. The certificate in terms of Section 137 of the Trade Marks Act was forwarded to the appellants on 6-4-2004 registering the appellants as subsequent proprietor of the brand name 'GURU' w.e.f. 1-4-2001. 6. In the background of the above facts, it is the case of the appellants that apart from lawful permission from the erstwhile original owners of the brand name 'GURU' right from the beginning for use of the said brand name for the product manufactured by the appellants, there was also a Memorandum of Understanding executed between the parties sanctioning such use of the brand name by the appellants w.e.f. 2-4-2001 and further even the appellants were registered as the subsequent, proprietor of the brand name w.e.f. 1-4-2001. Meanwhile there was also a Deed of assignment executed on 1-4-2003. In the background of these facts according to the appellants, they were fully protected for the use of the brand name 'GURU' right from the commencement and in any case from 1-4-2001 and hence it cannot be said that they have in any manner violated the conditions of the said notification or that they were not entitled for benefit under the said notification. It is thei....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w of the fact that the provisions of law under Section 11AB came into force from 11-5-2001, the claim for interest cannot relate to the period prior to the said day. It was also the contention on behalf of the appellants that there was no suppression of any fact at any point of time and therefore, the show cause notice could not have been issued on 7-1-2004 in relation to the period prior to one year preceeding issuance of the said show cause notice and claim in that regard in any case is barred by limitation. Further referring to the decision of the Larger Bench in the case of Ramply (India) Ltd. v. CCE, Belapur reported in 2007 (216) E.L.T. 129 (Tribunal) = 2007 (82) RLT 363, learned Advocate submitted that mere non-disclosure of the use of brand name of another person in the classification list cannot justify invocation of extended period of limitation. 8. Learned DR on the other hand placing reliance in the decision of the Apex Court in the case of Meghraj Biscuits Industries Ltd. v. CCE reported in 2007 (210) E.L.T. 161, CCE, Chandigarh v. Bhalla Enterprises reported in 2004 (173) E.L.T. 225 (S.C.), CCE, Trichy v. Rukmani Pakkwell Traders reported in 2004 (165) E.L.T. 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pute that the notification in question clearly provides that the exemption contained under said notification shall not apply to the specified goods bearing a brand name or trade name whether registered or not of another person except in the cases specified in the said notification and that the appellants' case does not fall in any of the said exceptions. It is, however, the contention on behalf of the appellants that they were lawfully entitled to use the brand name 'GURU' pursuant to the consent, assignment and registration of the said trade name in favour of the appellants. 11. The notification explains the term "brand name" or "trade name" to mean a brand name or a trade name, whether registered or not, i.e. to say, the name or a mark, such as symbol, monogram, label, signature or invented word or writting which is used in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. It is also clarified that where the specified goods manufactured by the manufacturer bear a brand name ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....la Enterprises' case while observing that there was no reason to differ from the reasoning in the earlier decisions in Rukhmani Pakkwell Traders and Mahaan Dairies' case it was held by the Apex Court that Clause 4 of Notification No. 1/93-C.E. exempted certain goods upto a particular value and excluded such benefit in case of product bearing brand name or trade name of others and that therefore, Clause 4 of the said Notification clearly disapproved the benefit of the exemption in cases where someone else's name in connection with their goods was used either with the intention of indicating in a manner a connection between the assesses goods and such other person. There is no requirement for the owner of the trade mark should use the name or mark with reference to any particular product. The object of the exemption notification was neither to protect the owners of the trade mark/trade name nor the consumers from being misled. These are considerations which are relevant in cases relating to disputes arising out of trade mark infringement or passing off actions under the Trade Marks Act. The object of the Notification under the Excise Act is clearly to grant benefit only to those indu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd in the explanatory notes describing the scope of the term brand name and trade name under the said notification cannot be construed either to enlarge the scope of exemption or reduce the same. Grant of exemption is essentially an executive function of the Government based on the policy framed in relation to revenue the matters by the Government. It is not for the Tribunal or any Court or the authority in the name of interpretation to read down such notification or add to or substract something from such notification. 16. Plain reading of the Notification nowhere discloses that the exemption thereunder can be availed for the product bearing brand name or trade name of other person on the basis of consent of the proprietor of such brand name or trade name. Neither it discloses that assignment of right in relation to brand name or trade name by the proprietor thereof in favour of manufacturer of goods would exclude such manufacturer from the exclusion clause in the notification. It is well established that the product which carries the brand name or trade name whether registered or not of another person, such product would be non-eligible to claim the benefit under the notif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on. This apart, the earlier decision of the Tribunal in Bigen Industries (supra) between the parties on the same facts for the period from 12th August, 1989 to 25th August, 1989 having attained finality, as the Revenue did not file any further appeal, the Revenue is precluded from taking a different stand in the present appeals as per law laid down by this Court in a catena of cases. (See Collector of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. reported in (2003) 11 SCC 193; Berger Paints India Ltd. v. Commissioner of Income Tax, Calcutta reported in (2004) 12 SCC 42, Birla Corporation Ltd. v. Commissioner of Central Excise reported in (2005) 6 SCC 95 = 2005 (186) E.L.T. 266 (S.C.); and Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.)". Proper reading of the decision in Bigen Industries case would disclose that the Apex Court therein has held that the Tribunal was right in observing that once the trade mark has been registered in the name of assessee by the statutory authority authorised to do so, recognizing the assessee to be the sole proprietor of the trade mark for India, the adjudicating authority as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was taken note of by the Tribunal that the trade mark need not necessarily be in respect of all goods unless registration has been so acquired and it is therefore, permissible in law to have same brand name for different classes of goods owned by different person, and in that background found in favour of the respondent and held that the Notification No. 223/87-C.E. dated 22-9-1987 was applicable. When as a matter of fact it is held that there was an assignment in favour of the first respondent and that fact was not in serious dispute the mere fact that the assignment was not registered could not alter the position. Therefore, we decline to interfere with the order made by the Tribunal and to that extent the appeal is dismissed in respect of respondent No. 1". (Emphasis reported) 21. Taking into consideration rival contentions in this regard as well as the decisions of the Apex Court referred to above, it is difficult to accept the contention on behalf of the appellants that mere consent or the mere assignment deed would entitle the appellant to claim benefit under the said notification. 22. As regards the registration of brand name, the same does not disclose the ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appellants had not raised the said point either in reply to the show cause notice or even in the appeal memo filed in the present case. It is only in the course of the argument that the learned Advocate sought to raise the said point. Such a procedure is not permissible. 26. It is also sought to be contended that considering the provisions of Rule 25 of the Central Excise Rules, 2002, the goods seized were not liable to be confiscated. Rule 25 provides that subject to the provisions of Section 11AC of Central Excise Act, 1944, if any producer, manufacturer, registered person of a warehouse or a registered dealer either removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules or does not account for any excisable goods produced or manufactured or stored by him or engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under Section 6 of the Act; or contravenes any of the provisions of the said rules or the notifications issued under these rules with intent to evade payment of duty, then all such goods shall be liable t....