NEW THEMO FABRICATORS Vs. CC AND CE

JUDGEMENT

(1.) The appellants are aggrieved with Order -in -Appeal No. 119/2002 (CBE)(GVN), dated 30.5.2002 by which the Commissioner has rejected the appellant's plea that they are not affixing the trade name or brand name of the supplier of the raw material. The appellants are job workers of M/s Emmar Equipments. M/s Emmar Engineering Corporation and M/s Emeskay Engineering Private Ltd., in order to identify the goods of the respective supplier. The had placed the name plate of the respective supplier on the goods. These name plates clearly indicated the company's name and not their brand name. The department rejected the appellant's plea that the case was covered by the Apex Court judgment rendered in the case of Astra Pharmaceuticals (P) Ltd., v. Collector of Central Excise, Chandigarh and that of Tribunal rendered in the case of Shree Krishankeshv Lab. Ltd., v. Collector of Central Excise. Ahmedabad . The Commissioner has held that affixing the name plate of the Company of the supplier amount to use of their brand name and hence, they are not entitled to the benefit of the SSI Notification No. 175/86 and 1/93.

(2.) Ld. Consultant Shri Section Kandasamy relied on the Apext Court judgment rendered in the case of Astra Pharmaceuticals (P) Ltd. v. CCE, as , 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 as 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 as 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 dis -entitled 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 as wherein also the word 'Glidden' was only 'house mark' and no customer recognised the final product with reference to that word '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 as 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 and M/s. EMESKAY Engineers Pvt. Ltd. are not trade marks and hence the benefit of notification cannot be denied.

(3.) 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 as .