Customs, Excise and Gold Tribunal - Mumbai
Laxmi Enterprises vs Commissioner Of Central Excise on 4 March, 2004
Equivalent citations: 2004(167)ELT408(TRI-MUMBAI)
ORDER Archana Wadhwa, Member (J)
1. The authorities below have confirmed the demand of duty agaisnt the appellants by denying them the benefit of small scale exemption notification No. 1/93-CE on the ground that they were using the brand name 'PARKMAT-T' which belonged to M/s. Parkman Polymers Indsutries and as such they were not entitled to avail the benefit. under the said notification.
2. Shri S. P. Sheth, learned advocate appearing for the appellants has drawn out attention to the two logos being used by them as also by the alleged owner of brand name and submits that whereas they are using the logo 'PARKMAN-T' showing the picture of two Rice Mills Rubber Roll Pipes, the logo being used by the other unit is 'PAL-PARKMAN' and there is not picture of the rolls on the said logo. He also submits that their logo is in an oval shape whereas the other unit's logo is in round shape. A visual examination of the two logos clearly establishes that they are not identical and as such it cannot be said that the appellants was using the brand name of the other unit. He also submits that PARKMAN is a trademark which is used by various manufacturers similarly situated, with little variation. He submits that such a type of the situation was considered by the Board who after obtaining the opinion of the Law Ministry has, vide its Circular No. 52/52/94-CS dts. 01/09/1994, held that the various lock manufacturers using a common brand name, which is not owned by any one units, cannot be denied the benefit of exemption under Notification NO. 1/93/-CE merely on the ground that they are using a marks, labels etc. used by other manufacturers as long as such mark do not belong to a particular person. It has further been clarified that the case would be same in respect of other goods specified under Notification No. 1/93. As such, the appellants' case is that the name "Parkman" is not owned by any specified person and is a common name being used by different manufacturers of Rubber Roll Pipes, with different prefixes or suffixes. Out attention has been drawn to the various such marks being used by the other manufacturers similarly situate. Reliance has also been placed upon the various decisions of the Tribunal that it is for the Revenue to prove the goods are being affixed with the brand name of the other person, failure of which would not result in denial of benefit to the assessee. Shri S.P. Sheth, learned Advocate has also brought to our notice that fact that subsequently the appellants have applied for registration of the said brand name and have been granted the same by the proper authorities. He draws out attention to the said certificate of registration.
3. Countering the arguments of learned advocate, learned Jt. CDR appearing for the Revenue submits that M/s. Parkman Polymers Industries came into existence in 1978 and had been using the brand name of Parkman right from the period onwards whereas the appellants have been using the said brand name from 1993 onwards. One of the partner of the appellant firm Shri S.G. Samant was a partner of M/s. Parkman Polymer Industries till 1993 and has admitted in his statement that the said brand name was being used by the earlier firm M/s. Parkman Polymer Industries. As such, he submits that the Revenue has discharged its onus to show that unit who have been using the said brand name from 1978 onwards are the owners of the same. He also submits that the distinction between 'T and PAL' is only to show that the appellants factory situated at Thane whereas the Parkman Polymer Industries is located at Palghar. He submits that inasmuch as the main wording Parkman being used by the appellants are identical they are hit by the mischief of para 4 of Notification No. 1/93 and has been rightly denied the benefit.
4. We have considered the submissions made by both the sides. After perusing the labels affixed on the goods as appearing at Page 220 and 221 of the paper book we find that there is lot of difference in the appearance of the two labels. As already noted the appellant's lable mark the word 'PARKMAN-T' with picture of two roll pipes and is a oval shape whereas the other logo uses the expression 'PAL PARKMAN' without any picture of the rolls and is in a round shape. We have also been shown the labels of other manufacturers wherein Parkman expression has been used with some suffixes or prefixes in different fashion. It is that appellant's case that Parkman is popular + common brand name and is being used freely by the other manufacturers also. It is not exclusive right of M/s. Parkman Polymer Industries to use the aid brand name and as such they cannot be held to be the legal owner of the same. We find that the Tribunal in the Case of CCE, Rajkot Vs. Hem Paints Pvt. Ltd. - 2001 (121) ELT 129 (Tri-Mum) has held that if user of brand name is not legal owner of the same, they cannot be said to have right to exclusively use it. Use of brand name has to be distinguished from exclusive ownership of that name and if a brand name remain in the public domain and every own was free to use it, the benefit cannot be denied to the assessee. The above view was arrived at by taking note of the Board's circular No. 52/52-94 whereas it was explained that there was practice of brand name not belonging to any one but being used by more than one manufacturers in which situation there was no contravention of the condition contained in Para 4 of the Notification. We find that the above Board's Circular and the ratio of the Tribunal decision is fully applicable to the facts of the instant case inasmuch as it has been shown to us that the expression Parkman was being used by various manufacturers and there is nothing on record to show that the same was legally owned by M/s. Parkman Polymers Industries to the exclusion of the other manufacturers. No evidence to the exclusion of the other manufacturers. No evidence to that effect has been produced on record by the department. Merely because Parkman Polymer Industries had Come in to existence prior to the appellant's unit and as such was using the said brand name for a longer period that the appellants, it cannot be said that they automatically became the legal owners of the brand name in question. In any case having already observed that the brand name being used by the appellants is different than the brand name of M/s. Parkman Polymer Industries, we do not find any justification for denial of the benefit of notification to the appellants. We also take note of the fact that the appellant has subsequently got registered the brand name in their favour. Had somebody else been the owner of the brand name in question. The appropriate authorities would not have registered the same in the name of the appellants. This fact also tilts the case in their favour.
5. We also take note that the Tribunal in the case of Unjha Ayurvedic Pharmacy Vs. CCE Jaipur reported in 2001 (134 ) ELT 706 (Tri. Del.) has observed that the brand name not registered or owned by anyone could be used by any other person and is not restricted and SSI benefit cannot be denied. In view of our foregoing discussion, we set aside the impugned order and allow the appeals with consequential benefit to the appellants.