COLLECTOR OF CENTRAL EXCISE Vs. GOPAL SOAP INDUSTRIES

JUDGEMENT

(1.) THE issue involved in the appeal filed by the Revenue is whether the benefit of Notification No. 175/86 is available to M/s. Gopal Soap Industries selling their product under brand name "T -Series".

(2.) SHRI Satnam Singh, learned SDR submitted that M/s. Gopal Soap Industries manufacture Washing Powder which was sold by them under brand name "T -Series". Accordingly, the Asstt. Collector in the adjudication order dated 26 -9 -1989 denied them the benefit of Notification No. 175/86 as the brand name "T -Series" belonged to M/s. Super Cassette Industries Ltd. who were not eligible to avail the benefit of the said notification. However, on appeal, the Collector (Appeals) in the impugned order set aside the adjudication order holding that the trade mark need not necessarily be in respect of all goods unless the registration has been so acquired that it is quite possible and permissible to have the same brand name for the different classes of goods owned by different persons. The Collector (Appeals) had relied upon the decision in the case of Nestle's Products Ltd. v. Milkmade Corporation, reported in AIR 1974 Delhi 40. The Collector (Appeals) also observed that brand name was registered in the name of M/s. Super Cassette Industries for the manufacture of electronic goods whereas the respondent were using the same in respect of Washing Powder and accordingly the brand name cannot be treated as brand name of M/s. Super Cassette Industries. The learned SDR further submitted that the respondents entered into an agreement with M/s. Super Cassette Industries for use of the brand name "T -Series" on payment of Rs. 25,000/ -; that this goes to show that the brand name belonged to M/s. Super Cassette Industries. He further contended that the respondents did not get the brand name registered for their products as they had borrowed it from M/s. Super Cassette Industries Ltd. The products manufactured by both brand owner and;, the respondents being different does not mean that the products manufactured by the respondents are not sold under the brand name of another person who is not eligible to avail the benefit of Notification No. 175/86. He also mentioned that the reliance of the Collector (Appeals) on the Board's Circular No. 213/41/88 -C.Ex., dated 30 -12 -1988 is not correct since the facts mentioned therein were different from the present matter, that clarification given by the Board suggests that when a common brand name is used by two manufacturers within their own right and not under permission from another, in such a situation it cannot be said that one is affixing the brand name of another person.,In the present matter the respondents are using the brand name of another person on payment of Rs. 25,000/ -.

(3.) SHRI V. Sridharan, learned Advocate appearing on behalf of the respondents, submitted that the Collector (Appeals) had come to the conclusion that the brand name did not belong to another person relying on the decision in the case of M/s. Nestle's Products Ltd. (supra) in which it was held that the use of the brand name in respect of condensed milk registered in the name of Nestle Products Ltd. by another manufacturer, namely Milkmade Corporation, in respect of biscuits and toffee cannot be treated as an infringement of Section 29 of the Trade and Merchandise Marks Act, 1958. He further submitted that merely because the appellants had made the payment for use of the brand name "T Series" under an agreement it does not mean that the brand name does not belong to them. As per para 2 of the agreement, the respondents had the exclusive right to use the brand name on laundry and toilet soap or any other media of washing preparations. The agreement authorised the respondent use of the brand name on the specified products. He also referred to the trade mark registry given in favour of Super Cassette Industries under Trade and Merchandise Marks Act and mentioned that it was given to them only in respect of electronic and electrical goods, gramophone records, video games, batteries, cameras and not in respect of washing powder. He also relied upon the decision in the case of Taj Serpent Eggs Factory v. C.C.E., reported in 1996 (85) E.L.T. 78 in which it was held that brand name belonging to others used on different goods produced by brand name owners will not affect the availability of Notification No. 175/86.