S N MOHIDEEN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE case of the petitioner is that he is a dealer of hand-made biris and he is also a manufacturer in hand-made biris. As2. a dealer, he used to purchase hand-made biris manufactured by others, affix his brand name, namely "MADRAS MUNIM BEEDIES" and sell the same. He states that on all the biris, namely on the biris purchased from the other manufacturers, the petitioner used to affix the brand label, namely "MADRAS MUNIM BEEDIES". THE petitioner claims that after the stage of manufacture was over and after the biris were made fit for consumption by the public without any further process at all, the petitioner used to affix the brand label, namely "MADRAS MUNIM BEEDIES".

(2.) THE First Schedule to the Central Excises and Salt Act, 1944 in tariff in Item 4 II 3 reads as follows :- "(i) Biris is the manufacture of which any process has been conducted with the aid of machine operated with or without aid of power and (ii) other biris'. By Notification No. 19/75-C.E., dated 1.3. 1975 made in exercise of power conferred by rule 8 of the Central Excise Rules, the Central Government exempted other biris falling under Item No. 4 II (3)(ii) from the whole of the duty of excise leviable thereon subject to the proviso contained therein. By a subsequent Notification No. 32/79 exemption was also granted for other biris subject to the provisos contained therein. Both these provisos state that the exemption will not be available to any biris which are sold under a brand name, whether registered or not, that is to say, a name or a mark, such as, a symbol, monogram, label, etc., which is used in relation to such biris for the purpose of indicating a connection in the course of trade between the biris and some person using such name or mark. Briefly stated, the exemption from the levy of excise duty or the concession rates provided under these exemption notifications would be available only to biris which are sold without a label indicating the brand name.

(3.) THE petitioner states that during the first week of February, 1982, he consulted his Counsel and he became aware of the illegality in the excise duty collected from him and it was thereafter he instructed his Counsel to take legal proceedings for recovery of the amounts which were collected from the petitioner.