Customs, Excise and Gold Tribunal - Tamil Nadu
M/S. Nubal Industries (India) Ltd. vs Commissioner Of Central Excise, ... on 30 April, 2001
Equivalent citations: 2001(77)ECC150
ORDER S.L. Peeran, Member (J)
1. This Appeal arises from order in original No.13/95 dt.10.2.95 passed by the Commissioner of Central Excise, Chennai. the demand has been confirmed solely on the ground that the appellants have used the logo of a foreign unit and hence they are not entitled to the benefit of SSI Notification. Duty for larger period has also been Confirmed besides imposing penalty of Rs.30,000/-
2. Arguing on behalf of the Appellants, the ld. Counsel submits that they have independent registration certificate and have no connection in trade with the foreign brand name or foreign logo or with the foreign company. Although he admits the name of the Company "Nubal Electronics (India) Limited" initially had an agreement with 'Nubal Electronics Ltd., England' but the logo used by Nubal Electronics Ltd. England has words "Intersystem" below the logo which is not in the case of appellant Indian Company. He admits there is no independent trade name registration in their name, however he, strongly contends that they are deceptively dissimilar. In view of the Bench's decision rendered in the case of Rukmani Pakkwell Traders reported in 1999 (109) ELT 204 (T) he urges the bench to allow the appeal. He also refers to Madras High Court Division Bench judgement rendered in the case of Union of India vs. Pillaiyar Soda Factory reported in 1992 (57) ELT 261 wherein also the Division Bench held that units using deceptively/similarly trade marks would not be entitled from the benefit of the Notification. He submits that the Division Bench judgement over ruled judgement that is reported in 1995 (38) ELT 404. He submits that notwithstanding his argument raised as above, he contends that this Bench in another case remanded the matter for de novo consideration to the Commissioner (Appeals) in the case of CCE, Vs. M/s. Gomukhi Charma Kendra & others vide final order No. A/60 TO 62/01 dt. 1.3.2001 to reconsider all the judgement cited including the explanation at IX and X of the said Notification, which clearly lays down that the logo or trade mark is required to be used "within the course of the Trade". He points out from this judgement that the Tribunal relied on its earlier decision in the case of Continental Power Systems vs. CCE reported in 2000 (69) ECC 553 (T) which was also remanded to reconsider the plea that the trade name are different and have no connection between the parties and 'in the course of trade' in terms of the Notification.
3. The Ld. Counsel further submits that all the facts of use of logo etc. had been brought to the notice of the Department and hence the demand raised by show cause notice dt.2.8.94 for the period from June 92 to March 92 is time barred as thee is no suppression. He also submits that this point has not been fully gone into by the Commissioner. hence, the order requires to be reconsidered in the light of the judgement cited by him.
4. The Ld. DR points out that there is no dispute regarding the appellants using the logo of foreign company. They have a common logo except in the English firm's name below the logos "Intersystem" has been written in lock letters. He also submit that though the Bench has remanded for de novo consideration the case of CCE vs. Gomukhi Charma Kendra (supra) and Continental Power System (supra) to re-decide the issue in the light of earlier judgements rendered in the case of UOI vs. Pillaiyar Soda Factory, wherein the benefit has been extended. But however the Bench felt that the explanation IX and X of the Notification had not been analysed in both the cases and it required re-consideration. He refers to the entire findings of the Commissioner, who has clearly noted that the relationship between the appellants and the foreign Company was in existence and therefore there being no dispute with regard to the common logo except the word "Intersystem", the benefit of SSI exemption cannot be extended. He submits that the logo identifies with product with the one manufactured by English Company and Customers are in a position to identify the product that is manufactured by the said foreign unit. He submits that this point is sufficient to deny the benefit in the terms of explanation IX and X of the Notification. He submits that the appellants had not informed about the use of the foreign logo and hence the larger period is invokable including imposition of penalty.
5. On a careful consideration of the submissions, we notice that the Tribunal in the case of Rukmani Pakkwell Traders vs. CCE (supra) and U.O.I vs. Pilliayar Soda Factory (supra) had taken a view that where there is dissimilarity in the Trade name or brand name then the parties are not disentitled from claiming the benefit of the Notification. In this particular case the judgements have not been looked into by the Ld. Commissioner in the impugned order. Therefore, the Tribunal in the similar matter remanded the case for reconsideration as in the case of CCE vs. Gomukhi Charma Kendra (supra). The Tribunal relied on its earlier order rendered in the case of Continental Power System vs. CCE (supra). There is clear direction given by the Ld. Commissioner for re-examination and verifying of the terms of para IX and X of the Notification as well as the judgement rendered by the Madras High Court in the case of CCE Vs. Pillaiyar Soda Factory (supra) and that of Rukmani Pakkwell Traders. The Ld. Commissioner had no occasion to look into these aspect of the matter. In the present case also the ratio noted in the judgement in the case of CCE vs. Gomukhi Charma Kendra (supra) are total applicable to the facts of the present case. We appreciate the counsel's submission in pointing out this judgement and his fairness and for not pressing for allowing the appeal on merits.
6. In view of the aforesaid reasoning, we set aside the impugned order and remand the matter to the original adjudicating authority for de novo consideration and to decide the case in the light of the observation made by the Bench in the case of CCE vs. Gomukhi Charma Kendra (Supra). The counsel's plea that the demands are time barred may also be considered by the Ld. Commissioner. The Ld. DR's contention may also be taken note of by the Commissioner in his de novo proceedings. Thus the impugned order is set aside and the matter remanded for de novo consideration. Ordered accordingly.
(Order dictated and pronounced in the open court)