(1.) The issue involved in this appeal filed by Ms. Kemfin Chemicals (P) Ltd. is whether the goods manufactured by them are bearing brand name of another person making them ineligible for the benefit of SSI Notification.
(2.) Shri B.L. Narisimhan, learned Advocate, submitted that the Appellants, registered SSI Unit, arc manufacturing since 1987 different varieties and grades of pickling preparations for metal surface, both in the form of powder and liquid; that they have their name as brand name alongwith logo which are used by them in their sign board, visiting cards, letter -head, etc. also; that the Commissioner, under the impugned Order, has disallowed the benefit of Notification No. 1 /93 -CE dated 28.2.93 and confirmed the demand of duty and imposed equivalent amount of penalty on the ground that they were using the brand name of Kemfin Industries. The learned Advocate, further, submitted that the Appellants are not using the brand name of another person; that Kemfin is not registered in the name of Kemfin Industries or any other person; that the marks used by them and Kemfin Industries are independent and distinguishable as the mark themselves shows the source of origin of the goods as emanating from Kemfin Chemicals Ltd. or Kemfin Industries since the brand name are the name of entity themselves; that, therefore, the question of their using mark or name of another person does not arise. He relied upon the decision of the Tribunal in the case of VI John Beauty Tech v. CCE, New Delhi, 2002 (81) ECC 432 (T) : 2002 (143) ELT 148 (T) wherein the tribunal allowed the benefit of SSI notification though the Appellants had printed words 'VI John" in their name in bold letters; that the Tribunal has held that it cannot be said that the excisable goods manufactured by the Appellants therein were bearing the brand name of another person. The learned Advocate emphasized that the Tribunal also held in that decision that using word 'V' on caps would not amount to use of brand name of another person. Reliance has also been placed on the decision in the case of CCE, Chennai v. Turnbull Control System (I) Ltd., 2001 (127) ELT 472 (Tri.) wherein it has been held that "use of company name does not bring within the 'ambit of brand name'. The learned Advocate, further, submitted that assuming without admitting that they were using the brand name, Kemfin Industries cannot be contended as the exclusive user of the mark in question and use of such mark by the Appellants as the mark of another person; that such contention is contrary to the provision of Trade and Merchandise Act, 1999; that the Appellants have been using the mark in question for more than 15 years and such mark and use was co -existing with the mark and use of Kemfin Industries; that further, there is acquiescence of Kemfin Industries in such co -existence; that Kemfin Industries had not objected to the use, of mark by the Appellants; that more -vover volume of sale by the Appellants has been consistently more than the volume of sale of Kemfin Industries and in these circumstances Section 24 of Trade and Merchandise Act confers ownership on all such users of the mark that Section 12 read with Section 33 confers on them the ownership over the mark they have been using; that accordingly Kemfin Industries cannot be construed as the exclusive owner of the mark in question. Finally the learned Advocate submitted that in case they are held liable to pay Central Excise duty their price should be treated as cum -duty in view of the decision of the Supreme Court in the case of Maruti Udyog Ltd. v. CCE, 2002 (80) ECC 249 (SC) : 2002 (141) ELT 3 (SC) that penalty under Section 11AC of the Central Excise Act is not imposable as it has been consistently held by the Tribunal that Section 11AC has no application to any Act of omission or commission purported to have been committed prior to enactment of such provision; that moreover no penalty is imposable under Rule 173Q of the Central Excise Rules.
(3.) Countering the arguments Shri Vikas Kumar, learned SDR, submitted that it is apparent from photograph of Jerry can at page 3 of the paper book submitted by the Appellants that they were selling their product under the brand name 'Kemfin' as the name of the company 'Kemfin Chemicals (P) Ltd.' is not mentioned on the front side of the can; that Shri Rajeev Bhalla, proprietor of Kemfin Industries has deposed in his statement that brand name Kemfin and the logo owned by them was being sold to the Appellants for sole consideration of Rs. 40,000. The learned SDR contended that some one can sell only that which belongs to him. He, further, submitted that the decision in the case of VI John Beauty Tech is not applicable as the facts are different. In the said matter the excisable goods manufactured by the Appellants therein were bearing their own brand names and the goods were being marketed under those brand names. He also pointed out that in the present case the Appellants are mentioning the brand name Kemfin in the same style as being done by Kemfin Industries. He relied upon the decision in the case of CCE, Delhi v. Ajay Footwear (I) Ltd., 2001 (129) ELT 704 wherein the Tribunal disallowed the SSI exemption as the Respondent was affixing the brand name belonging to a different group company. He also relied upon the following decisions: