Customs, Excise and Gold Tribunal - Ahmedabad
Ample Industries And Ors. vs Cce on 16 August, 2007
Equivalent citations: 2007(122)ECC398, 2007(148)ECR398(TRI.-AHMEDABAD), 2007(218)ELT456(TRI-AHMD)
ORDER Archana Wadhwa, Member (J)
1. All the appeals are disposed off by a common order as they involve an identical issue. The appellants are engaged in the manufacture of submersible and open well pump sets classifiable under Chapter Sub Heading 8413.11 of Central Excise Tariff Act, 1985. The said goods were being cleared by the appellant by availing the benefit of small scale exemption notification. The said notification denies the benefit to the goods if the same are affixed with brand names of other persons. Revenue, in the present case, found that apart from using their own brand name, the appellants are also affixing the pumps with brands like "Amar", "Jyoti", "Zenith", "Texflow", "Bison", "KRI" & "Super" etc. Accordingly, the proceedings were initiated for denial of the benefit of small scale exemption notification and confirmation of demand. During the adjudication, the appellants took a categorical stand that the above brand names were "free flowing" and did not belong to any particular person. Any manufacturer is entitled to use the same. Even the customers, on whose orders brand names were affixed, denied having owned the brand name. The brand names were being affixed to the pumps based upon as to which particular brand name was running well in that particular region. The appellants also placed an affidavit on record that various brand names are not owned by any person. Specific reliance was placed upon the Board's Circular No. 52/52/94-CX, dt. 1.9.94, to substantiate their claim that if the brand name is not owned by any particular person, use thereof will not deprive the unit of the benefit of the small scale exemption notification.
2. While dealing with the above plea of the appellant, Commissioner has observed in Para 32.2 of his order as under:
32.2 I have also given serious thoughts to the affidavit dt.5.9.05, under which Shri Rajesh Makanbhai Padariya, Proprietor of M/s Ample Industries claimed that brand viz. KRI, SUPER & UTTAM are not owned by any persons. In fact, the notice have produced the proof of brand viz. UTTAM owned by them. It is general trade practice that one unit / manufacturer owns only one brand name for the products. Therefore, I hold that whatever have been stated by the notice and by different customer, in relation to ownership of brand name viz. KRI & SUPER is misleading and hence is not be acceptable. As regards to the non-mention of brand on LR as pleaded by them. I find that many of transaction are not on bills/invoices. Therefore, there is no reasons to show the brand name on LR by the transporter nor the transporters are supposed to mention made such details (except quantity.)
3. As is clear from the above paragraph, the adjudicating authority has not come to a conclusion as to whom a particular brand name belongs to. It is well settled that the onus to show that an assessee is using the brand name of another person to whom it belongs to, lies on the Revenue and is required to be proved before the benefit of small scale exemption notification could be denied. In the instant proceedings, the Revenue has not established the owners of the brand name in question. As such, the definition of brand name as appearing in the small scale exemption notification that such brand name or (sic) name must indicate a connection in the course of trade between such specified goods and person using such names or marks, does not get satisfied in as much there is no such person using such names so as to indicate a connection in the trade. We, further, note that it is recognized even by the Board that some of the brands floating in the market did not belong to any particular manufacturer and any unit is free to use any name, specifically in the case of locks. The Board has clarified that such use thereof will not deprive any unit from the benefit of small scale exemption notification. The above clarification issued by the Board as based upon the opinion of the Law Ministry. In as much as in the present case also, the brand names do not belong to any particular manufacturer and are free for any assessee to use. As such, we are of the view that the benefit of notification can not be denied to the appellant on this ground.
4. We, accordingly, set aside the impugned order and allow all the appeals with consequential relief to the appellant.
(Pronounced in Court on 16/8/07)