TaxTMI 
TaxTMI 
2013 (8) TMI 789
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....E dated 28.2.93 (as amended) to the appellant in respect of certain branded goods cleared from their factory from October 1992 to September 1994. The show-cause notice in this case was issued on 22.12.1995 and the same alleged that the brand name Honey Cat under which diesel exhaust purifiers were removed from the factory during the above period without payment of duty by the appellant claiming SSI benefit under the above Notifications belonged to M/s. Johnson and Matthey Public Limited Co. U.K. (who were stated to be ineligible for the benefit of the above Notifications), and consequently the same benefit was not admissible to the appellant. The appellant replied by stating that, as they were using the brand name of a foreign company, SSI ....
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.... and, on this basis, the benefit of the two notifications should be extended to them. Reliance placed on Commissioner vs. Primella Sanitary Products: 2005 (184) E.L.T. 125 (S.C.), Commissioner vs. Convertech Equipment Pvt. Ltd.: 2011 (272) E.L.T. 342 (S.C.), ESBI Transmissions Private Ltd. vs. Commissioner: 1997 (91) E.L.T. 47 (Cal.), Commissioner vs. Capital Controls India (P) Ltd.: 2010 (260) E.L.T. 117 (Tri.-Mumbai), SPM Instrument India (P) Ltd. vs. Commissioner: 2003 (152) E.L.T. 115 (Tri.-Bang.), etc. (ii) Alternatively, the benefit of the first proviso to para (7) of Notification No.175/86-CE should be extended to the branded goods which was (claimed to be) a component of machinery and (claimed to have been) used by the buyer as o....
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.....). 5. The learned Superintendent (AR) made the following submissions. (i) The mere right of the appellant to use the brand name of the foreign company pursuant to an agreement between the two cannot entitle the appellant to contend that it ceased to be the brand name of the foreign company. Reliance placed on Swift Finvest Pvt. Ltd. vs. Commissioner: 2010 (260) E.L.T. 461 (Tri.-Del.) affirmed by the Supreme Court vide 2012 (279) E.L.T. A78 (S.C.). (ii) The affixture of the brand name on the package rather than on the goods contained therein would not make para 7/4 of Notification No.175/86-CE/No.1/93-CE ibid inapplicable. Reliance placed on Trupthi Multi Services vs. Collector: 1998 (102) E.L.T. 700 (Tribunal). (iii) As the bra....
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....e appellant has not claimed that the agreement was not terminated by either party in the above manner and hence continued to be in force so as to cover the period of dispute (October 1992 to September 1994) in this case. Therefore, in our view, nothing contained in the trade mark agreement dated 17.2.1983 can be taken into account while deciding on the question whether the brand name was assigned to the appellant by its owner to be used in India during the said period of dispute. We have also found that there is no reference to the above agreement in the orders passed by the authorities below. It was apparently not produced before them. Be that as it may, it is not in dispute that the brand name was used by the appellant on the packages of ....
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....5/86-CE/No.1/93-CE would not be applicable. It is not the case of the appellant that two or more units of diesel exhaust purifiers were cleared in one carton or other container. Apparently, each diesel exhaust purifier was cleared in one package (box/carton) affixed with the brand name. Even the invoice under which the package was cleared mentioned the brand name as stated by the Section Manager (Accounts) of M/s. Kirloskar Pneumatic Co. Ltd. On these facts, it has to be held that diesel exhaust purifiers were cleared under the brand name HONEYCAT. The decision in the case of Trupti Multi Services (supra) cited by the learned Superintendent (AR) is applicable to the facts of this case. In the cited case, cylindrical blocks (goods specified ....