Customs, Excise and Gold Tribunal - Delhi
Agi Switches (P) Ltd. vs Commissioner Of Central Excise on 23 April, 1999
Equivalent citations: 2000ECR178(TRI.-DELHI), 1999(111)ELT440(TRI-DEL)
ORDER
P.C. Jain, Vice President
1. Briefly stated facts of the case are as follows :-
The appellants herein are engaged in the manufacture of electric switches and parts thereof. They were availing benefit of exemption Notification No. 1/93, dated 28-2-1993 (as amended). After crossing the exemption limit of Rs. 30 lakhs, they filed a classification list claiming the benefit of the said Notification in respect of products as mentioned above. On the face of the classification list, they made the following declaration :-
"We are manufacturing switches of our own brand name AGI Switches."
2. At this stage, we mention the contours of the brand name. The brand name is broadly in an orange colour and reproduced as below :-
3. A show cause notice dated 7-10-1996 for the period March, 1994 to 12th August, 1994, was issued to the appellants that they are not entitled to the benefit of Notification No. 1/93 inasmuch as they are using the brand name 'AGI' of another person, namely, Ahuja General Industries (hereinafter called Ahuja). The brand name of Ahuja General Industries is produced below :-
5. In support of the appeal, learned Advocate, Shri J.P. Kaushik sub- mits that the differences in the brand name of the two parties, namely, the appellants and Ahuja have already been recorded by the adjudicating authority. In this connection, para 13 of the Order-in-Original is reproduced below :-
"13. There is no denial of the fact from the side of the department also that there is some difference in the logos used by two parties. The admitted position is that both the parties use the letters AGI inscribed in an oval boundary on their products. The Letter R inscribed in a small circle lies above the right hand top corner of the oval boundary. To that extent there is no distinction whatsoever between the logos of the two parties and these logos are identical. The noticee (or the first part) has put great emphasis on the use of term SWITCHES followed by a bold line under this term. The fact that the oval boundary is enclosed in a rectangle is also claimed to be the distinguishing feature. But these distinctions are insignificant."
The differences between the two brand names were ignored by the adjudicating authority and it has been held that two brand names are identical and thereby attracting the mischief of para 4 of the said Notification. Learned Advocate submits that the differences are just not minor. The very colour scheme and the geometrical figure of the two brand names are totally different. Finally the brand name of the Ahuja is "AGI" and brand of the appellants is "AGI Switches". He further submits that there is no agreement between the appellants and the Ahuja. No marketing of the goods is done through Ahuja and no payment is made to Ahuja by the appellants for use of this brand name. He takes support of two judgments of the Tribunal reported in 1999 (31) RLT 167 in the case of M/s. Yash Pharmaceuticals v. Collector of Central Excise, Mumbai and 1998 (28) RLT 36 in the case of M/s. Emkay Investments Private Limited & Plyking v. Commissioner of Central Excise, Calcutta-I. He submits that in the case of Yash Pharmaceuticals, it has been held that even if the brand names are identical it cannot be said that the brand names belong to the other person although the persons were found to be using the same. Learned Advocate, therefore, submits that even if it is held on the finding of the lower authorities that the brand names are identical, the benefit of the Notification cannot be denied on the strength of the Tribunal's judgment in the Yash Pharmaceutical because it cannot be held that the two identical brand name belongs only to Ahuja and not to the appellants herein.
6. Apart from the foregoing, learned Advocate submits that there is no allegation whatsoever in the show cause notice or any finding in the orders of the lower authorities that the other person, that is, Ahuja was not entitled to the benefit of Notification No. 1/93-CE. In the absence of such allegation or a finding, mischief of the para 4 of the said Notification cannot be attracted.
7. On limitation, learned Advocate submits that classification list has been approved by the Department on complete declaration regarding the use of the brand name. Ahuja was also working in the same Central Excise Division under which the appellants worked. Therefore, no suppression of facts can be alleged against the appellants on this ground. The entire demand of duty is time-barred because show-cause notice was issued well beyond the period of six months. Learned Advocate therefore, prays for allowing the appeal.
8. Opposing the contentions learned SDR, Shri R.D. Negi reiterates the findings of the adjudicating authorities as already set out above regarding the similarity in the brand names and thereby attracting the mischief of the para 4 of the said Notification. On limitation again, the finding of the lower authorities are reiterated stating that the appellants did not declare that they were using the brand name of the Ahuja.
9. We have carefully considered the pleas advanced from both sides. On the controversy of the brand name, we observe that there is a marked difference between the two brand names - one used by the appellants herein and other used by the Ahuja. By no stretch of imagination, these can be considered identical merely because the words in capital "AGI" has been used within an oval shape figure. The colour scheme and geometrical figures in which the words "AGI" are enclosed are different. The words "Switches" is extra in the appellants trade mark. Just a glance at the two trade marks, reproduced above create an impression that they are different. We also notice that there is no allegation whatsoever in the show cause notice that the other person, Ahuja, is not entitled to the benefits of the Notification No. 1/93. In view of these findings, we are clearly of the view that the benefit of the Notification No. 1 /93 cannot be denied to the appellants herein.
10. In view of the above, we need not enter into the controversy of the demand being barred by limitation.
11. Impugned order is, therefore, set aside and appeal is allowed with consequential relief to the appellants.