TaxTMI 
TaxTMI 
2017 (4) TMI 740
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....elevant period in question. 3. The appellant herein was a manufacturer of heating elements and by an agreement dated 06.03.1990 with Elpro International Ltd. (Elpro) purchased the machinery and technology to manufacture such heating elements and by agreement dated 09.01.1991, Elpro were appointed to market the goods i.e. heating elements manufactured by appellant. In the agreement, the appellant shall manufacture heating element carrying brand name Calrod and agreement also precluded both the appellant and Elpro to sell the heating elements to any other person during the pendency of contract. The appellant took the central excise registration and claimed the benefit of small scale notification. Classification list was also filed in Augus....
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....dictionary clearly indicate that Calrod is a generic name for any heating element. He would submit that the Order-in-Original over emphasised the word Calrod capitalising the word to indicate that the said word is the brand name. It is his submission that the appellant was permitted to sell heating element carrying the brand name of Elpro but no evidence has been produced by the department to prove that Calrod is a brand name of Elpro. It is his submission that the Tribunal in its earlier remand order dated 23.08.2002 clarified that the label on the product on which the Departmental Representative relied upon does not support the case of the revenue that the product carrying name was the brand name of Elpro and against such a finding revenu....
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....e classification list filed by them with the authorities when they started manufacturing activity and the said classification list was filed on 19.08.1991. 6. Ld. Departmental Representative on the other hand would draw our attention to the show-cause notice and annexure to the show-cause notice. It is his submission that the show-cause notice clearly brings out the fact that the product which has been sold by the appellant to Elpro contained a label which had logo of Calrod and specific words "Marketed by Elpro International". He would submit that by an agreement between the appellant and Elpro appellant was to manufacture heating elements with brand name Calrod and supply the same to Elpro only and no one else. He would read the findin....
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....therwise. We find that the entire argument of the CA was that the word Calrod was not a brand name of Elpro. 10. We find that in the first round of litigation, Tribunal in the order dated 23.08.2002 remanded the matter back to the adjudicating authority to reconsider the issue afresh but in para 5 held as under:- "5. From the material that is produced before us now by the appellant it emerges that the application made by the appellant for registration of the brand name Calrod was not accepted by the trade mark registry for the reason that the brand name was already in existence. This signifies that it was in the use by some other person. Counsel for the applicant explains that a fresh application was made in 1998 on the basis th....
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....rand name of Elpro is fortified from the fact that the appellant had filed classification list before the concerned Superintendent on 19.08.1991. The same classification list indicates in page 4 (part 3 of the classification) appellant had clearly mentioned Calrod as their brand name. This would explain that the appellant had considered Calrod as a brand name despite the fact that the Trade Mark and Patent Authorities had rejected the claim for brand name but granted the same in 2005. The Trade Mark authorities accepted Calrod as brand name of the appellant for which appellant had filed an application in 1998. We also find the appellant had informed the Superintendent of Central Excise on 12.07.1991 wherein they had categorically stated tha....