COMMISSIONER OF CENTRAL EXCISE Vs. HIRA CEMENT

JUDGEMENT

(1.) The issue involved in this appeal, filed by the Revenue, is whether the respondents, M/s. Hira Cement, were clearing their goods bearing the brand name of another unit, namely, Hira Industries Ltd.

(2.) Sh. V. Valte, learned S.D.R., submitted that M/s. Hira Cement, manufacture cement and claim the benefit of SSI Exemption; that number of show cause notices were issued to them for disallowing the SSI Exemption and for recovering the Central Excise duty on the ground that they were clearing cement by using the brand name/trade name with the style and other accompanying designs of M/s. Hira Industries Ltd., who are also manufacturers of cement; that the Commissioner, under the impugned order, has dropped the further proceedings against respondents holding that the respondents were not using common brand name on the packing of their product. The learned S.D.R., further, submitted that the style and logo, being used by the respondents consisting of a semi -circle with a diamond which is displayed prominently on their bags, is exactly the same as the logo used by M/s. Hira Industries Ltd.; that the said logo of appellants, M/s. Hira Industries Ltd. had also been registered by them under the Trade and Merchandise Marks Act, 1958; that, therefore, the benefit of SSI Exemption is not available as the cement manufactured by the respondents is clearly bearing the brand name and trade name of another person; that, moreover, the styling of the bags and the inscription thereon is exactly similar to the bags in which cement is marketed by M/s. Hira Industries Ltd.; that the style and manner of writing of maximum retail price, the position and size of ISI logo, colour scheme, etc. are exactly similar in both the cases; that the address of the registered office and telephone numbers of the respondents is the same as that of M/s. Hira Industries Ltd. The majority of the sales of the respondents are being effected by them to the independent buyers through the depots of M/s. Hira Industries Ltd.; that, thus, any buyer, coming to the depot of M/s. Hira Industries Ltd., would establish connection between the bags of the respondents and Hira Industries Ltd; that M/s. Hira Cement and Hira Industries Ltd. are related persons as was admitted by them before the Tribunal in appeal Nos. E/489 and 528/94 -A arising out of an earlier Order -in -Original No. 55, dated 16 -12 -93 by the C.C.E., Raipur and as recorded by the Tribunal in its Final Order Nos. 1077 -78/99, dated 5 -8 -99 reported in 2000 (116) E.L.T. 580 (T); that the distinction between M/s. Hira Cement and Hira Industries Ltd. has been created superficially to avail the benefit of SSI Exemption as the clearance from M/s. Hira industries Ltd. has crossed the exemption limit. He also relied upon the following decisions:

(3.) On the other hand, Shri R. Santhanam, learned Advocate, submitted that the brand name used by the respondents on their bags of cement is "BBC Cement" whereas the brand of M/s. Hira Industries Ltd. is HIRA CEMENT; that the respondents, after putting the brand name on the bags, are printing the name of their firm 'Hira Cement Factory, 572, Urla Industrial Area, Urla, Raipur -493 221 (M.P.)'; that mentioning the name of the assessee on the bag cannot be regarded as using the brand name of another company; that for the purpose of attracting the mischief of para 4 of Notification No. 1/93 or its successor Notifications, the brand name should be completely similar. He relied upon the decision in the case of C.C.E., Hyderabad v. Resource Communication Pvt. Ltd., 2003 (157) E.L.T. 490 (T) = 2003 (55) RLT 441 (CEGAT), wherein the Tribunal allowed the benefit of SSI Exemption to the respondents as the logo used by the respondents was different from the logo of another company M/s. RTPL. Reliance has also been placed on the decision in the case of C.C.E., Chandigarh v. Speedway Rubber Factory, 2003 (154) E.L.T. 207 (T). The learned Advocate also submitted that once it has been held by the Tribunal that M/s. Hira Cement and M/s. Hira Industries Ltd. are related persons, it cannot be claimed by the Revenue that the units had been bifurcated to avail the benefit of SSI Notification.