J. PRASAD POLYMERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE issue involved in these two appeals arising out of a common Order -in -Appeal Nos. 225 -226/2001 passed by the Commissioner (Appeals) is about availment of benefit of exemption as small -scale industry using the trade mark of other person.

(2.) SHRI B.L. Narasimhan, learned Advocate, submitted that M/s. J. Prasad Polymers, Appellant No. 1, is a partnership firm, engaged in the manufacture of PVC shoes and sports shoes; that they came into existence in the year 1990; that as they are a small -scale unit, they are availing the benefit of Notification No. 1/93 -Central Excise, dated 1 -3 -93 and its successor notifications; that they sell their products affixed with the brand names, Sundar Climbers, Sundar Dewana, Sundar Mastana, Sundar Raja, Sundar Naresh, Sunder Don, etc.; that the Additional Commissioner, under Order -in -Original No. 14/2000 dated 30 -3 -2000, disallowed the benefits of small -scale exemption notification, confirmed the demand of duty and imposed penalty on both the Appellants besides confiscating seized goods plant and machinery holding that the goods were sold bearing the brand memo 'Sundar belonging to M/s. Sada Ram and Sons (In short SRS); that on Appeal, the Commissioner (Appeals) has also, under the impugned Order, rejected their appeals.

(3.) THE learned Advocate, further, submitted that the name 'Sundar' is not registered brand name of SRS; that it is only registered for its artistic work under the Copyright Act; that the Department has proceeded on the erroneous premise that 'Sundar' is a registered brand name of SRS for foot wear; that registration under the Copyright Act does not imply that a particular copyright in the artistic manner written 'Sundar' would ipso facto confer registration under the Trade Marks Act; that 'Sundar' used by the Appellants is different from the literary work titled 'Sundar' which has been copyrighted and therefore, it cannot be said that the Appellants have used the registered copyright of SRS. He also mentioned that the Appellants have been using the name 'Sundar' on the footwear in question ever since they commenced the production in March, 1990 in combination with other names like 'Kishore', 'Mastana', Climber', etc. without any objection; that, further, after 22 -3 -1990, SRS have been using the brand name 'Sony' on the Hawaii Chappals manufactured by them and have ceased to use the word "Sundar" on any of their product; that, on the contrary, the Appellants have been the continuous and honest users of the name "Sundar". He emphasized that the brand names for their products are climbers, Kishore, etc. and the name "Sundar" is not a brand name; that when they have sold the impugned goods under their own brand name, the exemption under the notification cannot be denied. He relied upon the decision in the case of VI John Beauty Tech v. Commissioner of Central Excise, New Delhi - 2002 (143) E.L.T. 148 (T) and Commissioner of Central Excise, New Delhi -11 v. ACE Auto Co. Pvt. Ltd. - 2003 (106) ECR 280 (T); that in ACE Auto Co. case, the Appellants goods bear the brand name 'Tata Ace' and the Tribunal has held that the benefit of small -scale exemption notification will be available to the Appellants as there is no material to prove that the brand name belongs to another person.