Customs, Excise and Gold Tribunal - Delhi
Cce, Chandigarh vs M/S Mahaan Dairies on 9 March, 2001
Equivalent citations: 2001(133)ELT461(TRI-DEL)
ORDER
P.G. Chacko
1. The respondents namely, Mahaan Dairies Ltd. are an SSI unit engaged in the manufacture of pure ghee (branded) and pickles (both branded and unbranded). In their declaration filed under Rule 173-B effective from 2.6.98, they had declared to the department that, on their product viz. pure ghee, they were using "Mahaan" brand name belonging to M/s Mahaan Foods Ltd. [in short, M/s MFL] and would be paying duty on the product at full rate on account of use of other's brand name. In respect of branded pickles, they declared that they would be using their own brand name "Mahaan TASTEMAKER" and would be paying duty on the product at the concessional rate of duty in terms of Notification No. 8/98-CE dated 2.6.98 (prior to 2.6.98, Notification No. 16/97-Ce dated 1.3.97). The respondents later informed the department that "Mahaan" was a registered brand name of M/s MFL and that in 1997 they had applied for registration of the brand name "Mahaan TASTEMAKER" for use on pickles. Later on, the respondents filed two more declarations in respect of pickles, one effective from 1.1.99 claiming the benefit of Notification No. 8/98-Ce dated 2.6.98 upto 31.3.99 and the other effective from 1.4.99 claiming the benefit of Notification No. 8/99-Ce dated 28.2.99 w.e.f 1.4.99. Upon examining the labels on the respondents' products, the department observed, inter alia, that the brand name "Mahaan" was inscribed on the labels of containers of pure ghee in exactly the same manner as that word was inscribed (as part of the combination "Mahaan TASTEMAKER") on the labels of containers of branded pickles and, further, that the same monogram (the letter 'M' in invented form) was used on the labels in both cases. On this basis, the department took the view that the brand name and monogram, used on the containers of the branded pickles indicated a connection between the product and M/s MFL, owner of "Mahaan" brand name, and therefore the product bearing the brand name of another person would not attract the benefit (concessional rate of duty) of the Notifications. Two show-cause notices were, therefore, issued to the respondents demanding differential duty on branded pickles for different periods viz. 1.4.98 to 30.9.98 and 1.1.99 to 30.6.99. The party contested the demands. The adjudicating authority confirmed the demands of duty against the party and imposed mandatory penalties on them after rejecting the latter's plea that their brand name "Mahaan TASTEMAKER" was different from M/s MFL's brand name "Mahaan". The party's appeals against the orders of the adjudicating authority were allowed by the Commissioner (Appeals). Hence the present appeals of the Revenue.
2. Examined the records and heard both sides.
3. We note that the challenge in these appeals is only in relation to the extent of duty liability on the branded pickles cleared from the respondents' factory during the aforesaid periods. The adjudicating authority denied the benefit of SSI exemption under Notification Nos. 16/97-Ce, 8/98-CE and 8/99-CE to the respondents in respect of the branded pickles on the ground that the brand name "Mahaan TASTEMAKER" affixed on the containers of the product belonged to another person namely, M/s MFL. The lower appellate authority reversed the decision of the adjudicating authority on the following grounds : (i) the impugned product (pickles) manufactured by the party was different from the products of M/s MFL for which the brand name "Mahaan" was registered in favour of the latter; (ii) The brand name "Mahaan TASTEMAKER" used by the party was essentially different from the brand name "Mahaan" used by M/s MFL; (iii) The monogram 'M' [in invented form] used by the party on the containers of the product was not a registered trade mark either in favour of the party or in favour of M/s MFL and, therefore, it was difficult to say as to who was using whose trade mark. The lower appellate authority therefore found that the product was manufactured and cleared by the party only under their own brand name viz. "Mahaan TASTEMAKER" and not under another's brand name, and it observed that there was no justifications in denying the benefit of the above Notifications to the party. The authority relied on CBSE Circular No. 213/41/88-CX.6 dated 30.12.88 as well as the Tribunal's decision in the case of M/s Khanna Industries [1996 (82) ELT 109] and held that the pickles manufactured and cleared by the respondents under their brand name "Mahaan TASTEMAKER" during the periods in question were eligible to SSI exemption under the above Notifications.
4. In the present appeals, the main ground raised by the Revenue is that brand name "Mahaan TASTEMAKER" belonged to M/s MFL. According to the appellant, the respondents had categorically admitted to this effect. Yet another ground raised by the Revenue is that the respondents were using the same monogram interchangeably for the two items viz. pure ghee and pickle. The Revenue has further raised a ground that the Tribunal's decision in the case of Khanna Industries (supra) is not to be relied upon inasmuch as the department has challenged that decision in appeal before the Supreme Court. The Revenue has also contended that the Commissioner (Appeals) relied on the Board's Circular dated 30.12.88 erroneously.
5. Ld. SDR, Sh. M.D. Singh, reiterated the above grounds of the appeals. He submitted that the brand name "Mahaan" was admittedly the registered brand name of M/s MFL and the same brand name was used by the respondents on the labels of the pickle cleared from their factory during the material period. According to ld. SDR, the word 'TASTEMAKER' was used as a synonym for the word 'pickle' and the same was used along with the word 'Mahaan" only to make it appear that the respondents were using a brand name different from the brand name "Mahaan" registered in the name of M/s MFL. Lt. SDR submitted that the brand name "Mahaan" signified a connection between the product and another person namely, M/s MFL and, therefore, "Mahaan TASTEMAKER" should be considered to be a brand name belonging to M/s MFL, in which event the benefit of the Notification would not be available to the pickles branded with such brand name. Ld. DR further submitted that registration of brand name was not relevant for purposes of the Notification and, therefore, the mere fact that the respondents had applied for registration of the brand name "Mahaan TASTEMAKER" was immaterial. He also relied on the decision of the Madras High Court in the case of Bell Products Vs. Union of India [1995 (78) ELT 404 (MAD)].
6. Ld. Advocate, Ms. Reena Khair for the respondents defended the order of the Commissioner (Appeals). She also relied on the Tribunal's decision in the case of Rukmani Pakkwell Traders Vs. CCE, Trichy [1999 (109) ELT 204] in support of the impugned order.
7.1 We have carefully examined the submissions. It is an admitted fact that the brand "Mahaan" was a registered brand name of M/s MFL for various specified food products and not for pickles like what was manufactured and cleared by the respondents. It is also not in dispute that the respondents had applied for registration of the brand name "Mahaan TASTEMAKER" for their products viz. pickles. That application was submitted prior to the period of dispute. Moreover, the party admittedly declared to the department that they would be using the brand name on the said products. Since the brand name "Mahaan TASTEMAKER" was used by the respondent on a product different from the products of M/s MFL for which the brand name "Mahaan" was registered, there is no justification for taking a view that the use of the word "Mahaan" on the respondent's product indicated a connection between the product and M/s MFL, particularly when it was permissible to have the same brand name/trade mark for different classes of goods manufactured by different persons as clarified by the Board in Circular dated 30.12.88. We are, therefore, unable to accept ld. SDR's submissions on the point, and we also find that his submission that the respondent had categorically admitted that the brand name "Mahaan TASTEMAKER" belonged to M/s MFL is factually incorrect. Their admission was with regard to "Mahaan" and not "Mahaan TASTEMAKER".
7.2 We find that the respondent's brand name "Mahaan TASTEMAKER" is different from the brand name "Mahaan" belonging to M/s MFL as rightly submitted by ld. advocate. Ld. DR's argument that "TASTEMAKER" was used as synonym for 'pickle' does not appeal to us inasmuch as the word 'PICKLE' was also printed on the label of the product, "TASTEMAKER" appears to be only a part of the brand name "Mahaan TASTEMAKER", and so does "Mahaan". It follows that, as a brand name, "Mahaan TASTEMAKER" is different from "Mahaan". We observe that this Tribunal's decision in Rukmani Pakkwell Traders (supra) lends support to this view. The appellants in that case were using on pouches/containers of their product Scented Supari the brand name "ARR" with two logos one of which included a photograph of one Sh. A.R. Ramasami. Another party namely, M/s ARR Seeval were marketing raw betelnut in chipped form, on which they used the brand name "ARR" with one logo which included the photograph of Sh. A.R. Ramasami as above. The Tribunal held that the two brand names were not the same even though they might at best be said to be deceptively similar. We also note that the decision in Khanna Industries (supra) has been appositely relied on by ld. Commissioner (Appeals) in differentiating brand names in the instant case. Mere pendency of Department's appeal before the apex Court against that decision will not, per se, affect the precedent value of the decision. Ld. DR has no case that the apex Court has stayed the operation of the Tribunal's decision. With regard to his reliance on the Madras High Court's decision in Bell Products (supra), we observe that there is nothing in that decision to support any of the grounds of the Revenue's appeals on hand.
8. For the reasons already record, we hold that the brand name "Mahaan TASTEMAKER" which belonged to the respondents was not the same as "Mahaan" which belonged to M/s MFL and that the pickles with the brand name "Mahaan TASTEMAKER" cleared from the respondent's factory during the period of dispute were eligible for the benefit of the SSI exemption Notification. We uphold the order of the lower appellate authority. The Revenue's appeals are rejected.