Customs, Excise and Gold Tribunal - Delhi
Essma Woollen Mills (P) Ltd. vs Commr. Of C. Ex., Chandigarh-Ii on 15 February, 2002
Equivalent citations: 2002(81)ECC358, 2002(141)ELT550(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this appeal, filed by M/s. Essma Woollen Mills Pvt. Ltd. is whether the benefit of Notification No. 1/93-C.E., dated 28-2-93 is available to the shoddy blankets manufactured by them.
2. Shri K.L. Rekhi, learned Consultant, submitted that the Appellants are engaged in the activity of processing textile fabric on job work basis; that M/s. Essma Textile P. Ltd. sent them shoddy blankets for further processing; that the blankets did not bear any indication of identity in the form of any mark, symbol, label, signature or invented word or writing of any kind suggestive of any connection in the course between the goods and the producer or in other person; that however, for the purpose of identification and co-relation, the blankets having different specification, colour scheme, designs, etc. were described in the challans differently by names, such as Double Action, Manchester, Two Together, Minister, Teen Murti, etc.; that similarly in the invoices also the blankets were described by these names; that the Deputy Commissioner denied them the exemption under Notification No. 1/93-C.E. and confirmed the demand of Central Excise duty and imposed penalty holding that the blankets were printed blankets right from their weaving stage to the processing stage itself by mentioning the brand names on the documents like invoice/challan; that on appeal the Commissioner (Appeals) also rejected their appeal under the impugned Order holding that the fact that the impugned blankets were known/sold in the market by their respective identifiable brand names had been admitted by the Appellants and had it not been so there was no need to keep their identity intact by way of mention of the same in the challans right from the beginning till their sale. The learned Consultant, further, submitted that the impugned goods per-se do not carry any name or label, etc. what so ever at the time of clearance of the goods after processing by the Appellants; that it is only with reference to the condition of the goods at the time of their removal from the factory that the admissibility of the exemption has to be determined; that since there is not only any insuation that they carry any such name but in fact an admission of the fact that they did not bear any mark the denial of the exemption is totally unwarranted; that the Appellate Tribunal in the case of Madura Coats v. CCE, Bangalore -1996 (82) E.L.T. 512 (Tribunal) has held that the goods not affixed with brand name at the time of clearance are eligible for the benefit of Notification No. 175/86. The learned Consultant also mentioned that names mentioned in challans/ invoices do not belong to any person and anybody can use them as they are available to the public at large; that the bar of para 4 of the Notification No. 1 /93 will be attracted only, if the brand name belongs to another person. He relied upon the decision in the case of CCE, Rajkot v. Hem Paints P. Ltd. - 2001 (129) E.L.T. 129 (Tri.) wherein it was held that Small Scale exemption under Notification No. 1/93 is not deniable to the Assessee in absence of evidence by the department that brand name 'J.K.' used on containers belong to some other person. Finally, the learned Consultant referred to the Board's Circular No. 52/52/94-CX, dated 1-9-94 wherein the Board clarified, after consulting the Ministry of Law, that if a brand name is not owned by any particular person the use thereof will not deprive of a unit of the benefit of the Small Scale Scheme.
3. Countering the arguments Shri R.D. Negi, learned SDR, submitted that it is not required to attract the mischief of para 4 of Notification No. 1/93 that the goods must be affixed with brand name of another person. He, further, reiterated the findings as contained in the Orders of both the lower authorities.
4. We have considered the submissions of both the sides. Para 4 of the Notification No. 1 /93 reads as under :-
"The exemption contained in this Notification shall not apply to the specified goods, bearing a Brand name or Trade name (registered or not) of another person"
It is apparent from the perusal of the para 4 in the Notification that the benefit of the exemption provided under the notification shall not be available to the specified goods, if they are bearing the brand name or trade name of another person. Thus before the exemption can be denied under the notification the department has to prove that the goods are bearing a brand name or trade name of another person. In the present matter before us nothing has been brought on record by the Revenue even to show that the impugned blankets were bearing the brand name or trade name at all. The benefit of the notification has been denied only on the basis that the challans under which the blankets were sent by the Appellants to M/s. Essma Textile Mills P. Ltd. or the invoices contained the different name of blankets on the basis of specifications, colour scheme, design, etc. Merely mentioning the brand name/trade name in the invoices/challans cannot amount to specified goods bearing the brand name or trade name of another person. Unless and until the product is bearing the brand name which may be a name or mark, there cannot be a connection of the goods with some person in the course of trade. Accordingly, we hold that it cannot be alleged that the Appellants were clearing the goods bearing any brand name. We, therefore, allow the appeal.