PREMIER ENGG. ASSOCIATES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This appeal arises from Order -in -Original No. 5/98 dated 5.5.98. Proceedings were initiated against the appellant for a duty of Rs. 15,70,030 and also for confiscation of goods seized by the investigating officers calling upon them to explain as to why they should not be imposed with penalty. The appellants were alleged to have affixed name plate of M/s. EMESKAY Engineers Pvt. Ltd. According to the department fixing of these name plates amounts to use of trade name and brand name of the said company. The appellants denied using the brand name of M/s. EMESKAY Engineers Pvt. Ltd. They stated that they were job workers and after the work was completed the representative of M/s. EMESKAY Engineers Pvt. Ltd. fixed the label of their company for identification purpose. The appellant's plea was not accepted and the Commissioner in the impugned order has held that they affixed the name plate/brand name of the traders and they are not eligible to the benefit of Notifications No. 175/86 dated 1.3.86 and 1/93 dated 28.2.93. Hence, duty of Rs. 8,28,673 was recoverable by invoking larger period besides like amount of penalty. The Commissioner has also ordered for confiscation of goods, however, has released the same on payment of fine of Rs. 90,000.

(2.) Ld. Consultant Shri S. Kandasamy relied on the Apex Court judgment rendered in the case of Astra Pharmaceuticals (P) Ltd. v. CCE, 2995 (49) ECC 24 (SC): 1995 (75) ELT 214 (SC) wherein the Apex Court have clearly held that affixing the 'house mark' on the container or packing of the product manufactured by the appellant could not amount to use of brand name. He submits that this judgment has been applied by the Tribunal in large number of cases. He referred to the judgment of the Tribunal rendered in the case of Panchsheel Enterprises v. CCE, 1999 (108) ELT 494 wherein the Tribunal held that markings put on product to distinguish buyers are not trade mark/brand name particularly when such marks do not belong to any person in particular. Reference was drawn to the Tribunal's judgment rendered in the case of Intervalve (India) Pvt. Ltd. v. CCE, 2001 (75) ECC 699 (T): 2001 (133) ELT 148 wherein also use of word 'IV merely an abbreviation of manufacturer's name does not amount to using of brand name and the party is disentitled for the benefit of the notification. Further reference was drawn to the judgment of the Tribunal rendered in the case of Rajdoot Paints Ltd. v. CCE, 2001 (134) ELT 281 wherein also the word 'Glidden' was only 'house mark' and no customer recognised the final product with reference to that work 'Glidden' and hence the Tribunal held that such use of 'house mark' could not dis -entitle to benefit of SSI exemption. The judgment of the Tribunal in the case of Nippa Chemicals (Pvt.) Ltd. v. CCE, 1998 (100) ELT 490 was also referred wherein the party had merely indicated the name of the company and the Tribunal held that affixing name or mark of the company is not same as marking their name and hence the benefit of notification cannot be denied. Counsel submits that in the present case no brand name or trade name were used. The trader who was placing the orders on the appellant as a job worker had only affixed his label of the company and label of M/s. Emmar Engg, Corporation M/s. Emmar Equipments and M/s. EMESKAY Engineers Pvt. Ltd. are not trade marks and hence the benefit of notification cannot be denied.

(3.) Ld. DR Shri P. Devaladu reiterated the departmental view. He submits that using brand name even of a non -manufacturer will disentitle the party from availing the benefit of notification and in this; regard he relied on the judgment of the Apex Court rendered in the case of Indian Mgt. Advisors and Leasing Pvt. Ltd. v. CCE, 2002 (83) ECC 285 (SC): 2002 (143) ELT 241 (SC).