Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S Sams Techno Mech on 2 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/2859 & 2860/05 (Arising out of Order-in-Appeal No. BR/66 to 67/MIV/2005 dated 5.5.2005 passed by the Commissioner of Central Excise (Appeals), Mumbai-IV). For approval and signature: Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri C.J. Mathew, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== Commissioner of Central Excise, Mumbai-IV Appellant Vs. M/s Sams Techno Mech Respondent Appearance: Shri Ajay Kumar, Jt. Commissioner (AR) for Appellant Shri M.H. Patil, Advocate for Respondent CORAM: SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) SHRI C.J. MATHEW, MEMBER (TECHNICAL) Date of Hearing: 02.11.2015 Date of Decision: 02.11.2015 ORDER NO. Per: M.V. Ravindran
These two appeals are filed by the Revenue against Order-in-Appeal No. BR/66 to 67/MIV/2005 dated 5.5.2005 passed by the Commissioner of Central Excise (Appeals), Mumbai-IV.
2. Heard both sides and perused the records.
3. The issue involved, in brief, in this case is regarding the eligibility to avail benefit of small scale under Notification No. 8/2002 dated 1.3.2002 for using the brand name of another person. The respondents herein were manufacturers of pharmaceutical machinery and were engaged in clearance of said machines. The lower authorities were of the view that the respondents were using the brand name SAMS, while it is the case of the respondent that they were not using the said name and in fact the label on the machine is of the manufacturers own name and has no relation to the words SAMS.
4. The learned AR would draw our attention to the various grounds of appeal which has been taken in the appeal memorandum and submits that the SAMS is a brand name, which is of another person and even if it is unregistered, the respondent could not have used the same and avail benefit of exemption notification.
5. On perusal of the records, we find that there is no dispute as to the fact that the respondents had produced metal label which is affixed on each and every machines and it is recorded by the first appellate authority that the name plate contains details, such as name of the manufacturer in full, name of the product, model, sr. no., address, telephone no., fax no. and e.mail no.. The first appellate authority has recorded the findings to the fact that there were no words or letters which would indicate that SAMS is a brand name affixed on such machines. The said particular name plates were produced before us and on perusal of the same, we find that the said label does not indicate that the machines are cleared with a brand name SAMS. In fact the said label indicates exactly the manufacturers name and details which is Sams Techno Mech and Sams Tool Machine as the case may be. We find that the first appellate authority was correct in holding that if department wanted to deny the exemption notification on the ground that the brand name or their name is of another person, they must prove the case and the respondent cannot be asked to prove that trade name/brand name does not belong to any other person. We find that said metal label which was produced before us, creates an impression that the said machine is manufactured by SAMS Machine Tools or SAMS Techno Mech as the case may be. On such factual finding, we do fine that the first appellate authority was correct and the Revenue has not made out any case.
6. The Apex Court has now settled the issue in the case of Commissioner of Central Excise, Hyderabad-IV Vs. Stangen Immuno Diagnostics 2015 (318) ELT 585 (SC), wherein after considering various decided case laws held as under: -
11.?Condition No. 4, as already noted above, stipulates that the exemption contained in this Notification would not be given to a person in respect of goods where brand name or trade name of another person is used i.e. the goods bearing the brand name or trade name which belongs to some other person. It is immaterial whether such brand name or trade name is registered or not. However, Explanation-IX gives a unique and particular definition to the term brand name or trade name. It is clear from the reading of the said explanation that the definition of brand name or trade name contained therein is concerned with a particular name or mark which is used to indicate, in the course of trade, a connection between such specified goods as satisfying the criterion provided in aforesaid condition 4 and the manufacturer which is using such name or mark with or without any indication of the identity of itself. The central idea contained in the aforesaid definition is that the mark is used with the purpose to show connection of the said goods with some person who is using the name or mark. Therefore, in order to qualify as brand name or trade name it has to be established that such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer. We are supported in this view by series of judgments of this Court in Tarai Food Ltd. v. CCE, (2007) 12 SCC 721 = 2006 (198) E.L.T. 323 (S.C) = 2007 (8) S.T.R. 442 (S.C.), the expression brand name was explained in the following terms :
7.?The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacture which when used on a particular product would establish a connection between the product and the manufacturer.
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9.?Furthermore the definition of the words brand name shows that it has to be a name or a mark or a monogram, etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark, etc. cannot, therefore, be the identity of a person itself. It has to be something else which is appended to the product and which established the link.
7. Identical view was taken by the Apex Court in the case of Commissioner of Central Excise, Pune-II Vs. Pethe Brake Motors (P) Ltd. 2015 (319) ELT 575 (SC), wherein the Apex Court held as under: -
This is not in dispute that the respondent is an SSI unit. However, it was denied exemption from Excise duty admissible under Notification No. 1/93-C.E., dated 28-2-1993 on the ground that it was using branded name of another person and therefore in terms of para 4 of the said Notification it was not entitled to the exemption.
2.?However, we find that finding of fact is recorded by the Tribunal in the impugned judgment that the respondent assessee was not using the branded name of another person and the name used was the surname of the Director of the assesse, viz., PETHE. This finding of fact which clearly means that the case does not fall within the mischief of para 4 of the aforesaid Notification No. 1/93.
3.?The appeal is accordingly dismissed.
8. In view of the foregoing and in the facts and circumstances of the case, we find that the impugned orders are correct and do not require any interference. The appeals are rejected.
(Pronounced in Court)
(C.J. Mathew) (M.V. Ravindran)
Member (Technical) Member (Judicial)
Sinha
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Appeal No. E/2859 & 2860/05