Customs, Excise and Gold Tribunal - Tamil Nadu
Nippa Chemicals (Pvt.) Ltd. vs Collector Of C. Ex. on 11 September, 1997
Equivalent citations: 1998(100)ELT490(TRI-CHENNAI)
ORDER T.P. Nambiar, Member (J)
1. These are Appeal Nos. E/SB/1373 & E/SB/1374. The Appeal No. E/1373 & 1374 are filed against the orders passed by the Collector (Appeal) in Order No. 370/88 and 368/88. Since these two appeals arise out of the same order, we propose to dispose of the same.
2. As far as Appeal No. 1373/89 is concerned, it is the case of the department that the appellants are using the brand name of another company by using the following words while marketing their products :-
IN INDIA BY NIPA CHEMICALS LTD., In Collaboration with Nihon Parkerizing Co. Ltd., Japan.
46, Garuda Buildings, Cathedral Road, Chennai-600086.
MARKETED IN INDIA BY Goodlass Nerolac Paints Ltd., GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI-400013.
FOR INDUSTRIAL USE ONLY
3. In Appeal No. E/1374 the case of the department is that the appellants are using the following brand name of another company who is not entitled for the benefit of Notification No. 175/86 :-
Manufactured by:
DREWTREAT CHEMICALS LIMITED In Collaboration with Drew Chemical Corporation, U.S.A. Registered Office: 46, Garuda Buildings, Cathedral Road, Madras-600086. Marketed by:
Goodlass Nerolac Paints Ltd., Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 Caution:
Corrosive Product. Avoid contact with skin, eyes and clothing. Nett Wt. 35 Kgs.
Batch No. Mfd.
FOR INDUSTRIAL USE
4. In the impugned order, the Collector (Appeals) held that the exemption contained in this notification was not applied to the specified goods where a manufacture affixes this specified goods with the brand or trade name of another person. He stated in the impugned order that the above markings which are reproduced above amount to a brand name. Therefore, he held that the appellants are not entitled for the benefit of the above said notification.
5. The learned Advocate Shri Nasser Abdullah appearing for the appellants contended before us that the definition of "brand name" does not apply to the above said notification. He pointed out that the appellants in Appeal No. 1373/89 has merely mentioned that the products are manufactured in India by "NIPA CHEMICALS LTD." in collaboration with "NIHON PARKERIZING CO. LTD., JAPAN". They also mentioned that the same is marketed in India by "GOODLASS NEROLAC PAINTS LTD." of Bombay. It was therefore pointed out that these writings will not come within the purview of "brand name" for the purpose of the said Notification No. 175/86. He pointed out that the appellants only stated that these products are manufactured in collaboration with "NIHON PARKERIZING CO. LTD., JAPAN" which is marketed by "GOODLASS NEROLAC PAINTS LTD." of Bombay in India and they do not come within the purview of definition of brand name. He stated that these words which are used by the appellants do not come within the purview of Name or Mark, such as symbol, monogram, label, signature or invented word or writings which is used in relation to the specified goods. He, therefore, pointed out that the impugned orders are not in accordance with law and the denial of the benefit of Notification 175/86 is not legal and proper.
6. Heard the learned JDR Shri S. Murugandy appearing for the department. He contended before us that the appellants in Appeal No. 1373/89 has clearly stated that these products are manufactured in India by them in collaboration with "NIHON PARKERIZING CO. LTD." of Japan and these words are written in capital letters. He, further, pointed out that it is also mentioned therein that these are marketed in India by "GOODLASS NEROLAC PAINTS LTD.". He, therefore, pointed out that these two wordings indicate that it falls within the ambit of brand name, connecting the product with another person who is using the same brand name for his product. He, therefore, pointed out that the reasonings of the learned Collector (Appeals) is in accordance with law.
7. On the same analogy, he pointed out that in the case of Drewtreat Chemicals they have used the words that these products are manufactured in collaboration with "DREW CHEMICAL CORPORATION, U.S.A." and it was mentioned that the same is marketed by "GOODLASS NEROLAC PAINTS LTD.". He, therefore, pointed out that the above two writings showing the name of the US company as the Collaborator and the other company through whom they market the same indicate a connection in the course of trade between the appellants' specified goods and those two companies. He, therefore, pointed out that the same clearly falls within the Explanation VIII which reads as follows :-
"Explanation VIII- "Brand Name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature of invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person."
8. It is therefore seen what is essential is that the appellants should use any name or mark so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark.
9. It is further mentioned in the above said explanation by stating that the name or a mark means a symbol, monogram, label, signature or invented word or writing which is used in relation such specified goods for the purpose of indicating the above said connection. The writings in the above said case, in our opinion cannot come within the purview of symbol. It cannot also be a monogram. The same cannot be a label or a signature. It cannot be an invented word in view of the fact that these are names of the company but are comprised of two/three words.
10. The learned JDR stated that this will come within purview of "name". But in order to come within the purview of 'name', we have to again look into the definition of "brand name" and the elaboration given therein. The elaboration given therein is 'symbol, monogram, label, signature or invented word or a writing'. We have already ruled out that it does not come within the purview of a mark or a symbol or a monogram or label or any invented word in view of the reasons furnished above.
11. The next question is whether it comes within the purview of a writing which is used in relation to such specified goods for the purpose of indicating a connection in the course of the trade. In this connection, we have to look into the definition of "WRITE" & "WRITINGS" in the OXFORD DICTIONERY. The same are defined as follows :-
write (r-) v. (past t. wrote, past part, wri'tten). Form symbols representing letter(s) or word(s) esp. on paper, parchment, etc., with pen, pencil, brush, etc., form (such symbols), set (words etc.) down in writing, express in writing; chronicle, make record or account of; convey (message, information, etc.) by letter; engage in writing or authorship; produce writing; ~ down, set down in writing; write in disparagement or depreciation of; reduce (total, assets, etc.) to lower amount; - off, record cancelling of (bad debt, depreciated stock, etc.); reckon as lost or worthless; ~ - off (n.) something that must be regarded as total loss or wreck, failure; ~ out, make written copy of; transcribe in full or detail; ~ up, write full account or record of; give full or elaborate description of; commend by appreciative writing, praise in writing; -up (n.) review or report.
wri'ting (r-) n. (esp.) Written document; (piece of) literary work; personal script, handwriting; put in -, write down; the Writings, = HAGIOGRAPHA; - case, case holding writing materials; -desk, desk; - master, instructor in penmanship; the yellow-hammer (from marks like scribbling on eggs); -paper, paper for writing on with ink, esp. note-paper; ~-table, desk.
12. It is therefore seen that these are certain words enumerated to project the name of the two particular companies and they do not come within the purview of "writing" or "name". These are mere printed words indicating the names of two companies. Therefore, in our view, these will never come within the purview of "brand name" in view of the fact that they do not come within the meaning of "name" or "mark" which is elaborated in the explanation to "brand name" and this being the position, the arguments of the learned DR cannot be accepted. These printed words only indicate the name of the appellant company and their products being marketed by the other company and nothing more emerges out. In this view of the matter, we hold that the mischief of para 7 of the above said notification is not attracted to the facts of this case. In this view of the matter, the appeals of the appellants are allowed with consequential relief.