COMMISSIONER OF CENTRAL EXCISE CHANDIGARH Vs. BHALLA ENTERPRISE

JUDGEMENT

(1.) These appeals raise a common question of law arising out of exemption Notification No.-1 of 1993-CE by which exemption was granted under Section 5 (a) of the Central Excises and Salt Act, 1944 with regard to certain goods upto a particular value. The particular paragraph of this notification the interpretation of which is in issue, is paragraph 4 and explanation IX to that paragraph. These read : "the exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person. " explanation IX- "brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or mark, [x x x] such as symbol, monogram, label, signature or invented word or writing 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. ]

(2.) The specified goods referred to in paragraph 4 have been set out in the annexures to the notification. It is not in dispute that the industries which manufactured and cleared specified goods up to the limits prescribed by the notification would not be entitled to the exemption if the specified goods bear a brand name or trade name of another person. The question which has been raised is whether the brand name or trade name should have been used by such other person in respect of the specified goods of the same kind or class as the goods manufactured by the assessee claiming exemption.

(3.) Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central Excise v. Rukhmani Pakkwell Traders, 2004 (165 ELT) 481; as also in Commissioner of Central Excise, Chandigarh v. Mahaan Diaries, 2004 (166 ELT) 23. In both these decisions this Court held that paragraph 4 with explanation IX of the Notification could not be construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone else's name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection between the assessees' goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. 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 infringement/passing off actions under the Trade Marks Act. The object of the notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. The decisions cited by the counsel appearing on behalf of the assessee relate to decisions involving Trade Mark disputes and are in the circumstances not apposite.