WAVETRONICS Vs. CCE NEW DELHI I

JUDGEMENT

(1.) IN this appeal filed by M/s Wavetronics, the issue, involved is whether the benefit of SSI exemption under Notification No. 175/86 -CE dt. 1 -3 -86, as amended was available to their product sold under brand name "National RXC4OF".

(2.) SHRI Rjaesh jain, Id Advocate, submitted that the Appellant manufacture two in one bearing the brand name "National RXC4OF;" that the Assistant Commissioner denied the exemption under Notification No. 175/86, holding that the brand National is of a foreign concern which is not entitled for SSI benefit and interms of Para -7 of the Notification, the goods will not be eligible for exemption under the Notification; that their appeal was also rejected by the Commissioner (Appeals), holding that brand name 'National' is an acknowledged and well known name and affixing the goods with such brand name, attracts the mis -chief of para 7 of the Notification. The Id. Advocate, further, submitted that the onus to prove that the ownership of the brand name belongs to other person is always on the Department as held by the Tribunal in many cases such as Eco -Products India (Pvt.) Ltd Vs. CCE Meerut, 2000(120) ELT 356 and Kalinga Cable Co. Vs. CCE Delhi, 1999 (33) RLT 12: that there is no mention in the show -cause -notice as to whom this brand 'National' belongs to; that they have not affixed the brand name of any other person in India or even of any country outside India/ that National may be an acknowledged and well known name in respect of two -in -one but the brand name used by them is "National RXC4OF" and not 'National'; that even otherwise the brand National cannot be attributed to be a brand owned by a foreign company because the goods when sold under their brand always carries a logo alongwith name; that the style in which the word "National" appears on their goods is different and moreover the logo appearing with their name is neither used by the appellant on their products nor alleged to have been used in the show -cause notice. The Id. Advocate relied upon the decision in the case of Rukmani Pakkwell Traders Vs. CCE Trichy 1999(109) ELT 204 wherein it was held that the use of word "Such brand Name" shows that it is the very brand name which are used by brand name owner should be used by the manufacturer. In this case the Appellants were only using part of the brand name i.e., ARR and the photograph of A.R. Ramasami, and the Tribunal held that the benefit of Notification No. 1/93 is available because the brand name may at best be treated as 'deceptively similar'. He also placed reliance on the decision in the case of A.G.I. Switches (p) Ltd VS. CCE New Delhi, 1999 (III) ELT 440(T) and Continental Power System Vs. CCE Banglore, 2000(69) E.C.C. 553. The Id. Advocate also mentioned unless and until connection between the trade name and the person with whom that brand name is identified can be established, the requirements of brand name in the notification will not be satisfied. He referred to Board's Circular No. 52/52 -94 -Cx dt. 1 -9 -94. Finally, be submitted that the affidavit of the Appellants stating that the brand name belongs to them has not been rebutted by the Department.

(3.) COUNTERING the arguments Shri M.P.Singh, Id. DR, submitted that what is being mentioned by the Appellant is the brand name "National" and the remaining words are nothing but Model Number; that as held by the Commissioner (Appeals), the brand name "national" is an acknowledged and wellknown name in respect of the specified goods manufactured by the Appellants; that in such cases no further proof is required to prove who is not eligible for the benefit under Notification; that in these type of cases the onus to prove shifts to the assesee which has not been discharged by them. He further, submitted that the Appellant's main plea before the Adjudicating Authority was that in India, the brand name belongs to them and they were marketing the impugned goods on their own and had never supplied the goods to the brand name owner. He, further, submitted that the Appellate Tribunal in the case of Kumar Products Pvt. Ltd. Vs. CCE, Final Order No. 2397/97 dt. 2 -9 -97, held that it is not necessary that the entire label is to be taken into account and that it will not make any difference that wires made by the parties are of different sizes; that the Supreme Court has dismissed the review petition filed by M/s Kumar Power Products as reported in 1999(III) ELT A198.