TaxTMI 
TaxTMI 
2006 (2) TMI 166
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....i Suresh Agrawal. Another industry, known as M/s. Hira Industries Limited, is also a manufacturer of cement having a factory in the town of Jagdalpur which is situated at a distance of about 300 Kms. from Raipur. Hira Industries Limited was incorporated and registered under the Companies Act on or about 20th October, 1983 whereas the Respondent herein was set up in the year 1988. Hira Industries Limited is not a SSI unit. The unit of the Respondent was earlier known as Bajrang Bali Cement whereas that of Hira Industries Limited was known as Jai Bajrang Cement Ltd. The capacity of production of the Respondent's cement industry is about 60 tonnes per day whereas that of Hira Industries Limited is 150 tonnes per day. 3.As a SSI unit, the Respondent herein claimed exemption from payment of excise duty in terms of a notification dated 28-2-1993. The said notification was issued under Section 5A of the Act; paragraph 4 whereof reads as under : "4. The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant o....
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....ement happened to be the same. Both the entities were operating independently." 5.The Appellant contends that the Respondent, herein was not entitled to claim the benefit of SSI exemption on the ground that the same would not apply to the specified goods bearing a brand name of another person, in view of the fact that the Respondent has been using the brand name of said Hira Industries Ltd. 6.Further contention of the Appellant is that the said Hira Industries Limited being engaged in the manufacture of cement with the brand name of Hira Cement which demonstrates the financial interrelationship of both the concerns as belonging to a group of industries, known as Hira Group of Industries. 7.Indisputably, 10 show-cause notices were issued by the Superintendent/Assistant Commissioner concerned upon the Respondent calling upon if to show cause as to why the SSI exemption granted to it should not be disallowed and the duty which was not paid for the period December, 1993 and December, 1997 should not be recovered. In the said proceedings, the Respondent was held to be not entitled to such exemption. 8.However, on an appeal made by the Respondent, by an order dated 28-12-2001....
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....itiated against the Respondent as also the said Hira Industries Limited as regard valuation of goods wherein ultimately by an order dated 21-9-2001, the Commissioner dropped the proceedings. It is also not in dispute that in the appeal preferred by the Appellant, herein before the Tribunal questioning the order dated 28-12-2001, the assessee objected to the maintainability of the appeal by filing a cross-objection before the Tribunal. The Commissioner in its earlier order dated 21-9-2001 opined : On comparing the two bags submitted by"(d) the two noticees No. 1 and 2 which was submitted by them during the course of personal hearing on 3-9-2001, it is clear that the noticee No. 1's brand name 'BBC' was more prominent on their bags whereas in case of bags of noticee No. 2 brand 'HIRA' with a logo of diamond on top is more prominent. This fact may be further corroborated with samples and drawing of HDPE/Jute bags submitted by noticee No. 1 to the Assistant Collector Central Excise & Customs, Anupam Nagar Raipur under their letter No. HC: 91-92 dtd. 4-2-92 enclosing the photocopies of the documents. Hence noticee No. 1 M/s. Hira Cement (firms name) have used only brand name 'BBC' on....
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....er such position. Likewise, the interpretation of Explanation VIII as advanced by the Tribunal does not appear to be correct in law and in fact. It was imperative that by using the registered logo "MERINO" belonging to M/s Merinoply and Chemicals Ltd. on their own product M/s Emkay Investments Ltd. fulfilled the purpose of indicating a relation between the said products and the logo owner so as to influence the trade and therefore, the provisions of Explanation VIII were fully satisfied so far as the case on hand was concerned. The finding of the Tribunal to the contrary, in our opinion, is wrong and liable to be set aside." 15.It was submitted that in that view of the matter the impugned judgment of the Tribunal and the order of the Commissioner cannot be sustained. As regard the cross-objection filed by the Respondent, it was urged that the order of the Commissioner dated 21-9-2001 having a limited effect, the same will not debar the Appellant from maintaining an appeal. In any event, the law having been declared by this Court, the decision of the Commissioner must give way to the decision of this Court. 16.Mr. R. Santhanan, learned counsel appearing on behalf of the Respon....
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....t in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not) that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words "ARR" with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." 19.In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies [2004 (166) E.L.T. 23], the same view was reiterated. The views expressed therein have also been reiterated in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Another (supra). 20.The ratio of the decisions referred to hereinbefo....