Customs, Excise and Gold Tribunal - Tamil Nadu
The Commissioner Of Central Excise vs Gomukhi Charma Kendra And Ors. on 13 March, 2001
Equivalent citations: 2001(76)ECC627
ORDER S.L. Peeran, Member (J)
1. These Revenue appeals arise from a common Order-in-Appeal No.14 to 19/2000 (M-II) dated 10.2.2000 passed by the Commissioner (Appeals) setting aside the two Orders-in-Original which was the subject matter of six appeals, confirming the demands and penalties against the respondents. The assessee has also filed cross appeal against the said order and they are all linked together for disposal as per law.
2. The case made out against the respondent was that on extensive investigation carried out by the Director General of Anti-Evasion, the department found that the respondent-1 M/s,Gomukhi Charma Kendra (GCK, for short) had two manufacturing divisions engaged in the manufacture of leather goods at Guindy Industrial Estate; that the company of GCK (both leather and shoe division) is a proprietory unit owned by M/s. K.Y. Gaitonde. (KYG, for short); that RYG is a trading firm with their sales outlet located at Hotel Park Sheraton, Chennai who owns the brand name "Gaitonde", that GCK has used the delivery challans/gate pass in the name of RYG for movement of goods from their factory to various places; that RYG has neither the infrastructure nor any declared premises to do manufacturing activities from the premises of GCK Leather Goods Division; that partly processed leather goods received from job workers are inspected for quality, trimmed, cleaned and polished and then packed at GCK; Raw materials sent to job workers in the name of RYG are cleared by GCK from their premises at Guindy; that though RYG has no existence at Guindy Industrial Estate, part of the goods manufactured by GCK are cleared in the name of RYG. Accordingly, a show cause notice dated 4.9.98 was issued proposing demand of duty of Rs. 14,38,940 from GCK being the duty payable on the excisable goods cleared with the brand name of another person apart from the proposal for levy of interest, imposition of penalties under Rule 173Q read with Section 11AC etc. and proposal for appropriate Rs. 2 lakhs paid by them on 9.4.98 and for confiscation of land, building etc. used in the manufacture of disputed goods. Show cause notice also proposed enforcement of Bank Guarantee of Rs. 2 lakhs executed in respect of goods valued at Rs. 8,18,500 (provisionally released) apart from propose for penalty under Rule 209A on Shri Kasinath Yaswant Gaitonde, Proprietor of GCK. After consideration of all the replies and arguments, the original authority by his first impugned Order No. 58/98 confirmed the above demands.
3. Similarly, after extensive investigation on the strength of intelligence gathered by DG Anti-Evasion, the department found that M/s. Southern Sulphates and Chemicals Pvt. Ltd. had manufactured and cleared leather garments from their factory to local markets under the brand name "GAITONDE" or under the brand name of foreign buyers without payment of Excise Duty; that M/s. SSC had not disclosed to the department about affixing of brand name on their manufactured product belonging to another person and that their using another person's name in the declaration filed by Central Excise department and availed exemption under Notification 1/92. Accordingly, show cause notice dated 4.9.98 was issued proposing to levy demand of duty on them for Rs. 8,68,071 with interest for delayed payment and penalties under Rule 173Q and appropriation of the Security amount of Rs. 75,000 and enforcement/appropriate of the"--appears in the certified copy, has been deleted as it seems a typing error. security amount of Rs. 75,000 and enforcement/appropriate of Rs. 2 lakhs and imposition of penalty in respect of fourth respondent, proposing penalties under Rule 209A in respect of respondents 2 & 5. After due consideration of the replies, the original authority confirmed duties and imposed penalties vide his Order-in-Original No. 59/99. Both these orders were taken up by the Commissioner for consideration and passed the Orders-in-Appeal No.14 to 19/2000 (M-II) dropping demands in both the SCNs, setting aside the orders-in-original which are challenged before us. The Commissioner rejected their application filed under the provisions of Section 35F of the Act directed them to pre-deposit the amounts. However, on their filing an application for modification petition, relying on the judgment of CEGAT, the Commissioner reconsidered and passed the impugned order by allowing the appeal itself and the findings in paras 9 to 11 are reproduced:
9. All the appellants filed a modification petition relying on CEGAT decisions in the case of Nippa Chemicals P. Ltd. v. CCE and in the case of Chem Guard Coatings P. Ltd. v. CCE reported in 1999 (34) RLT 560. They also pleaded that Gomukhi Charma Kendra have two manufacturing units, one unit is engaged in the manufacture of shoes and uppers falling under 6401.11 and 6401.91 respectively; that this unit is affixing the brand name 'Gaitonde' oo after paying full rate of duty without claiming the benefit of MODVAT credit; that the said Gomukhi Charma Kendra also has a leather goods division wherein the goods are cleared with the name 'Gaitonde' oo; that their goods would fall under CSH 42.01, a separate tariff entry for leather goods and articles of leather, that the shoe division products fall under Chapter 64, whereas the leather goods division producing leather goods fall under Chapter 42; since the goods are different and not one and the same as held by the Tribunal in the case of Taj Serpent Eggs Factory v. CCE Madurai , SSI exemption could not be denied to them as the product on which the brand name is affixed is altogether different; that they would also rely on South Regional Bench Division in the case of Rukmani Pakkwell Traders reported in 1999 (109) ELT 204; that the lower authority has clearly stated in para 11 that what is affixed is the name 'Gaitonde' and therefore the usage can only be deceptively similar but not the same trade name or brand name; and that in the case of Rukmani Pakkwell the benefit of SSIU was extended to a brand name which is deceptively similar but not the same trade name or brand name. They also pleaded that the submissions made for Gomukhi Charma Kendra leather division would also apply mutatis mutandis to M/s. Southern Sulphates and Chemicals who are again engaged in the manufacture of leather garments falling under CSH 42.01. They also submitted that there was no registration for M/s. Southern Sulphates.
10. I find force in the above pleading of the appellants. In the case of Taj Serpent Eggs Factory , the Tribunal has decided that the brand name belonging to others used on different goods than produced by brand name owners would not disentitle the appellants from claiming the benefit of Notification No. 175/86 (now 1/93-SSI exemption). In the cited case, the two products involved were pyrotechnic articles and fire works and it was held that the product serpent eggs being pyrotechnic articles was not classifiable as fire works and the brand name 'Cock' belonging to others was used on pyrotechnic articles whereas the owner of the brand name used it on the fire works produced by him. In coming to the above decision, the Tribunal placed reliance on the decision in Precise Electronics wherein the brand name 'master piece' was used by the appellants therein on clocks, whereas the brand name belonged to another manufacturer who was the manufacturer of watches. It was held that these facts do not disentitle the appellants in that case to the benefit of Notification No. 175/86. Similarly, in the cited case of Rukmani Pakkwell Traders reported in 1999 (109) ELT 204(T), the Tribunal held that the brand name used even though was deceptively similar, was not the same trade mark of a specified person and that the trade mark used by the appellant and the specified person were in respect of different classes of goods. Accordingly, it was held that Explanation 9 of Notification No. 1/93 was not attracted and that the benefit of exemption would be available. Coming to the subject case, it is seen that the products involved which are using the brand name 'Gaitonde' are shoes and uppers of Chapter 64 as also leather goods of Chapter 42. Thus, the goods are not one and the same but are quite different from each other. In view of the above, the mischief of Explanation to Notification No. 1/93 would not be attracted here and the ratio of the Tribunal decisions cited will directly apply to the subject case. Respectfully following the ratio of the above decisions, I hold that the impugned orders denying SSI exemption and demanding duty are not correct and are to be set aside. Since the appeals are allowed on merits, the consequent order of the lower authority in both the impugned orders as regards penalties, appropriation etc. are also set aside.
11. In the light of the above discussions, all the six appeals are allowed in the above terms.
4. We have heard Ld. SDR Shri G.Sreekumar Menon for Revenue and Ld. Advocate Shri N. Venkatraman for the assessee. Ld. SDR points out to the grounds made out in the appeal and mentioned that the Commissioner had misdirected himself in applying the ratio of the Tribunal judgment rendered in Rukmani Pakkwell Traders v. CCE 1999(109) ELT 204 which dealt with a different aspect of the matter. In that appeal, the question was with regard to two different nature of brand of goods and the owners were totally different. There was no relationship between the owners and the specified goods. The brand names were also different and it was found to have been deceptively similar. On that ground, Revenue had proceeded to deny the benefit of the notification for having used the brand name of another person. Therefore, examining the issue in the light of the facts, the Tribunal had noted that the goods were different and marketed differently by two different set of owners and they were clearly distinct and distinguishable brand names. Although there was some similarity and that by itself could not be a ground for denying the benefit of the notification. He points out that the goods are totally different in the present case. There is no dispute on the proximity and relationship of the owners of brand name. The brand name 'GAITONDE' is also same except that name 'GAITONDE' is used with or without three circles. However, the name is not different nor its pronunciation and identification with the group with whose name it is registered namely R.Y. Gaitonde & Co. The goods are marketed in the name of 'GAITONDE' and trade recognises the goods in the name of 'GAITONDE' and they are purchased in the name of Gaitonde. Therefore, in terms of the explanation to the Notification No. 1.83, a brand name or trade name shall mean a brand name or trade name whether registered or not that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose indicating or so as to indicate a connection in the course of trade between such specified goods and some person using the said name or mark with or without any indication of the identity of that person. Analysing this explanation, Ld. SDR points out that the facts of the present case, the explanation has been fully satisfied because although there are two circles to the same name it also gets included within this explanation which refers to "a name or mark, such as symbol, monogram, label, signature or invented word or writing". This is clearly used in relation to specified goods and it has got a clear connection in the course of trade between such specified goods and the proprietor presently using the said name or mark with or without any indication of the identity of that person. He points out that in the present case, the identity of the person is also disclosed inasmuch [as] the personal name is being specified on the goods and it is traded in that name, and made known to public with regard to goods sold with the name. He gave an example of proprietors of 'BATA', 'PHILIPS', who were all personal names and they had utilized the same for specifying the goods to trade the goods in that name. So also, ' TATA TEA' and similar such personal names of persons have been identified with the specified goods and so as to indicate a connection in the course of trade with regard to said name and as such, the Commissioner has misapplied the judgment wherein no such criteria was examined or applied and in that judgment only the similarity of trade name was the question involved. He points out that in the instant case, the brand name owner is M/s. R.Y. Gaitonde which is a partnership firm with Shri R.Y. Gaitonde, K.Y. Gaitonde, V.R. Gaitonde (brothers) and Shri S.M. Shirgaokar (close relative) as partners. He points out that respondents namely M/s. Gomukhi Charma Kendra is a proprietory concern owned by Shri K.Y. Gaitonde. Thus, both group concerns are engaged in the manufacture and marketing of identical goods shoe uppers and leather goods and the companies are owned and operated by persons closely related to each other. The disputed goods i.e. manufactured by assessee of leather goods falling under 42 of CETA '85 and cleared through their sales outlet at Hotel Park Sheraton with the same brand name 'GAITONDE' affixed on the goods and the same is identified with mark as trade name of the goods and hence they are hit by the explanation clause for the benefit of the notification. He submits that there is no dispute on the said brand name 'GAITONDE' used as a trade name by partnership firm of M/s. R.Y. Gaitonde in marketing their goods. Therefore, same name used by assessee for their goods clearly identifies with the brand name and hence question of considering it as deceptively similar in the present case as held by the Commissioner (Appeals) does not arise and the order is required to be reversed in the light of various other judgments in which the benefit of the notification has been denied for using the brand name.
6. Shri N. Venkatraman, Learned Counsel argued the case exhaustively alongwith the case-law to persuade the Bench to accept the ruling of Commissioner (Appeals). He has placed before the Bench the following propositions:
(i) whether a name of a person can be constructed as brand name for /the purposes of grant of exemption or denial in terms of explanation to the SSI notification No. 1/93.
(ii) assuming that name falling under "deceptively similar name", even then eligible for benefit cannot be denied.
(iii) the brand name/trade name being affixed on different set and range of products and not the same one would not disentitle the assessee from the benefit of the notification.
(iv) demands are barred by time in the light of conflicting views of the Tribunal.
(v) penalty is not leviable.
7. On point No. 1 Ld. Advocate points out that there was [were] two units. One is a proprietary concern who is before the Tribunal as assessee who manufactures shows [shoes] and leather goods. On the shoes, they affix the brand name 'GAITONDE' and it has got a big letter 'g' in the stylish form in the middle of 'GAITONDE'. In other words, the words 'g' is in three disproportionate circles and 'GAITONDE' in block letter is written on the lower middle portion of the circle. This is a brand name registered by the private limited company of Gaitonde and Co. and on which they are paying duty. Assessee are also manufacturing leather goods on which merely stamp in block letters 'GAITONDE' which is not in the same stylised form as the one affixed on the shoes on which duty is paid and it does not bear the same stylised form as that of one affixed on shoes which is owned by private limited company. Therefore, the name of 'GAITONDE' and its mere use on leather goods by the assessee is different and it has to be taken as deceitful similarity. The other private limited company is having leather garments which is also different goods. He points out that R.Y. Gaitonde & Co. is a partnership trading company. The brothers are partners and it is they who are having registered brand name with the stylised 'g' they are manufacturer of any goods and as assessee is not using that stylised 'GAITONDE' with 'g' over it in three circles but using only 'GAITONDE'. Therefore, the goods being not the same and the name also similar to any different stylised form, it has to be taken as dissimilar and hence not as a same brand name and therefore the ratio of Rukmani Pakkwell would clearly apply to the facts of this case. He points out that although the Madras High Court by Single Judge in the case of Bell Products Co. v. UOI had taken a view that brand name used on other goods gets disentitled but it was Single Judge's judgment case and that case had not taken into consideration the Division Bench of the same High Court rendered in UOI v. Pillaaiyar Soda Factory wherein the Bench had ruled that manufacturer using the deceitful similar but not same trade mark for aerated water, hence get disentitled from the benefit of the notification. He points out that this judgment has been applied in the case of Rukmani Pakkwell Traders v. CCE Trichy (supra) and therefore the judgment rendered in Bell Products & Co. v. UOI which was subsequent judgment of Single Judge without taking into consideration the Division Bench judgment rendered in UOI v. Pillaiyar Soda Factory (supra) has no relevance. He submits that therefore application of Bell Products Co. case in the case of Intercity Cable System (P) Ltd. v. UOI denying the benefit by using the brand name 'Shyam' belonging to another person affixed on different products is not applicable and gets overruled. Likewise, he contends that the judgment rendered in the case of Thio Pharma v. CCE which denied the benefit and the use of trader's brand name also gets distinguished and overruled in the light of the judgment rendered in UOI v. Pillaiyar Soda Factory. He submits that in the case of Super Star Welding Ind. Ltd. v. CCE Ahmedabad , the Tribunal denied the benefit on the admitted use of brand name of another person namely M/s. Advani Oerlikon Ltd. and this judgment is also distinguishable and not applicable to the facts of the case. Likewise, he points out that the Larger Bench judgment rendered in the case of Namtech Systems Ltd. v. CCE 2000 (115) ELT 238(T) is also not applicable to the facts of the case as it dealt with the affixing of brand name or trade name of a foreign person or trader who is not a manufacturer. He submits that the Madras High Court in the case of Kali Aerated Waters Works v. UOI is also distinguishable as it is a Single Judge's judgment case and in that case the brand name of another person was being used. The Learned Single Judge had analysed the facts of the use of the brand name owned by the joint family of the founder of business and which was transferred by deed of mutual arrangement and these facts are not applicable to the present case. He forcibly submitted that the judgment rendered by this Bench in the case of Rukmani Pakkwell (supra) would clearly apply to the facts of the case as in that case the Tribunal held that use of dissimilar brand name would not disentitle them from the entitlement of the benefit of the notification. He points out that Apex Court in the case of Astra Pharmaceuticals (P) Ltd. v. CCE Chandigarh while considering the use of "house mark" or "product mark" of patent and proprietory medicine noted that merely putting "house mark" of the company product by itself will not disentitle them from the benefit unless the trade recognizes relation between the mark and the medicine. If the name of the 'AP' or 'Astra' was used alongwith the name of the medicine and described as Astra injections' or 'Astra Dextrose injections', then it can be said that the relationship between the monogram and the medicine was established and on that count the benefit can be denied and not if only monogram is used to identify the manufacturer. He submits that in the present case also the words 'GAITONDE' did not identify with the brand name or trade name or the specified goods but it identified with only with the name of the manufacture and on that count benefit cannot be denied in the light of the Apex Court judgment rendered in Astra Pharmaceuticals Put. Ltd.
8. On the second point also he pointed out that merely because "GAITONDE" was used, it was not the same as registered brand name 'GAITONDE' with three circles resembling 'g' and GAITONDE coming in the middle of the third circle of 'g' or having similarity with 'Gaitonde' but both are not same. Therefore ruling of Rukmani Pakkwell and Taj Serpents Export Co. as applied by the Commissioner would apply to the facts of the present case.
9. On the third point also, he points out that the goods being different and not same judgment of Bell Products Co. and Intercity Cables Systems (supra) gets distinguished and overruled in view of Division Bench judgment of Madras High Court in UOI v. Pillaiyar Soda Factory (supra) wherein it had been laid down that on reading the notification, it shows that the sale must be with 'same' trade mark or brand name in order to attract categorization of 'common trade mark aerated waters' for the purpose of the notification. It does not use the word 'similar' or 'identical' but 'some'. It had been held that there is not evidence or material to hold that one trade mark was used by manufacturers of different units. Therefore, on that count writ petitioners were held to be entitled to the benefit of individual exemptions granted under Notification No. 48/82-C.E. He contends that the concept and the ratio would apply although the terms of the notification may be different. He further submitted that there is no relationship or connection in the course of trade between such specified goods as used by the assessee with the goods of the registered trade person and some person using such name or mark with or without any indication of the identity of that person in terms of notification. He also refers to the Board's circular on this issue which clarifies about the use of brand name.
10. On the time bar, he points out that when there are conflicting judgments, then benefit of time bar is required to be extended to them as has been held in large number of rulings. He refers to Madhya Pradesh High Court judgment rendered in S.N. Sunderson (Minerals) Ltd. v. Suptd. (Preventive) C. Ex. Indore wherein the Hon'ble High Court held that although crushing of lime stone into lime stone chips of specific size amounts to manufacture. However, on time limit, the Court held that as there were conflicting judgment on this issue, larger period was not invocable. He drew further support from the judgment of Jagan Tubes Ltd. Others 2000, (41) RLT 31 (CEGAT) wherein also in view of conflicting judgment of CEGAT the allegation of the fraud, suppression of facts in the SCN was held to be not invocable. A similar view was expressed in Jaypee Rewa Cement v. CCE Raipur . Further reliance was made on the judgment of the Tribunal in the case of Refco Icematic Company v. CCE New Delhi, on time bar. He also refers to bona fide belief held by the appellants that there was no same brand name used by them on that count relying on the judgment of Padmini Products v. CCE wherein the Apex Court held that larger period is not invocable if a bona fide belief is established and held by the party. He submits that the said judgment was applied in the case of Janta Rubber Distributors v. CCE 2000 (125) ELT 671(T). He submits that in the case of CCE V Turnbull Control System (I) Ltd. , the Tribunal held that affixing of sticker of company's name would not come within the ambit of definition of 'brand name' and on that count rejected the revenue's appeal. He submits that all these judgments are applicable to the facts of this case and hence larger period on penalty is also invocable in the light of judgments cited.
11. Ld. SDR countered the arguments of the Counsel by submitting that all the citations are distinguishable and plea raised by him clearly applies to the facts of the case including the plea for invocation of larger period and imposition of penalty as the name 'GAITONDE' was similar to the one used by the registered trader only and merely because there were three rings in the form 'g' over 'GAITONDE' would not make any difference and it is not dissimilar to the same as the name of the product gets identified with the name of Gaitonde and the pronunciation being, hence the judgments cited are distinguishable.
12. On careful consideration of the submissions and on perusal of the material and judgments, Board's circular including the impugned order, we are of the considered opinion that both the authorities have not examined the issue in the light of explanation to the notification. The explanation IX & X to the notification reads as follows:
Explanation IX--"Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, (X X X) such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.
Explanation X--For the purpose of this notification, where the specified goods manufactured by a manufacturer, bear a brand name or trade name (registered or not) of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader.
The Notification No. 1/93 grants exemption to excisable goods of description specified in the annexure in the notification falling under the schedule of the Central Excise Act. It is referred to as "specified goods" and cleared for home consumption on the conditions laid down therein. However, Clause-3 lays down that "nothing contained in this notification shall apply, if the aggregate value of clearances of all excisable goods for home consumption,--
(i) by a manufacturer, from one or more factories, or
(ii) from any factory, by one or more manufacturers had exceeded rupees "(three hundred lakhs) in the preceding financial year." (Substituted (w.e.f.1.4.1995) for the word "two hundred lakhs" by M.F. (D.R.) Notification No. 59/ 95-C.E. dated 16.3.1995.). Clause-4 lays down that the exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade (registered or not) of another person. Explanation IX and X is part of that Clause-4 for the purpose of interpretation. We are now required to see as to whether the assessee is using the brand name or trade name (registered or not) of another person of this specified goods. Annexure gives the list of specified goods which is required to be examined. It does not say the 'same' goods but refers to 'specified goods'. Further, Explanation IX defines 'brand name' or 'trade mark' which is already extracted. If the brand or trade name which is in the form a symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that mark, then in that event the benefit of the notification is required to be granted. These are the crucial issues which are required to be analysed for the purpose of this case. The assessee contends that although the word "g" as registered by the trader is used by them but it is dissimilar and not the same. The spelling of the word "GAITONDE" is same except registered trade name has got letter "g" in three circles and 'GAITONDE' coming in the middle of third circle. Assessee contends that explanation refers to the same and not similar trade mark while in the present appeal Revenue contends that the affixing of three circles which is in the form of 'g' would not make any difference as the explanation refers symbol, monogram, label, signature or invented word, or writing' which is used in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. In order to claim the benefit of the notification, it is for the assessee establish that they are covered within the ambit of the notification. It is for them to show that the name used by them i.e. "GAITONDE" has no relationship with the 'specified goods' for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. In this case, there is no dispute about the relationship of the persons or the identity of the person with the goods, what is required to be examined is whether it is specified goods and some person using such name or mark in the course of trade. Appellant are putting the words ' GAITONDE' and uses it in their products. The crucial test is whether this trade name or brand name is used in the course of trade. Although trade name or brand name are differently used but if it has got any connection with same name or same alphabet which cannot be said to be dissimilar. All these aspects are required to be examined and seen with greater scrutiny than merely holding that the case is being totally covered by Rukmani Pakkwell's case. There was no connection between the two trade names and both the trade name patterns were totally different in design. The owners were not related or connected. There was no connection in the course of trade between such specified person and some person using such name or mark with or without any indication of the identity of that person. There was clear finding of facts on this issue. These facts have to be examined and analysed to give benefit of the judgment of Rukmani Pakkwell and the Division Bench judgment of Madras High Court in UOI v. Pillaiyar Soda Factory (supra). Both the authorities have not examined this issue in the light in which we are examining or in the light of the wordings of the Clause-4 and Explanation-lX and X of the notification.
13. We observe that both the authorities have not examined also the Board's circular as well as the plea of limitation raised and non-imposition of penalty in the light of judgment cited and hence we are of the considered opinion that both orders are not speaking orders in the light of arguments raised and pleas submitted and the issue discussed in the light of the judgment referred to.
14. We also notice that a similar issue came up for consideration in the light of Continental Power Systems v. CCE Bangalore 2000 (69) ECC 553(T) wherein the benefit of notification was denied on the plea that "Celtronics" was being used in capital letters by a party at Bangalore while similar name was being used by another party at Ahmedabad. While analysing the case, the judgment of Rukmani Pallwell was also cited by the assessee and other judgments to show there were dissimilarity of products and they were entitled to the benefit of the notification. The Tribunal noted that the matter was required to be re-examined in the light of its use in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark. The findings arrived at para-5 is extracted hereinbelow:
5. On careful consideration of the submissions and on perusal of the records, and also the Notification No. in question including the mark used by the appellants with that of the party at Ahmedabad it is our considered opinion that the matter dealt with by the Larger Bench in the case of Namtek Systems (supra) pertains to use of brand name of foreign person or of non-manufacturing trader. This case is distinguishable insofar as the present facts are concerned inasmuch as we have to examine the Explanation IX appended to the Notification in question. In terms of the above explanation, there has to be nexus and connection between the names and the mark, signature or invented word of writing which is used in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark. In the present case, the Revenue has proceeded to deny the benefit of the Notification on the ground the another person at Ahmedabad is also using the same brand name and hence the appellants are not entitled to the benefit of the said Notification. The department has not proceeded to examine nor taken statement from the party at Ahmedabad to show a nexus between the name used by the appellants by the other person on the specified goods or the other person that is the party at Ahmedabad using the same name. Therefore, the pleas raised by the learned Counsel on this aspect of the matter is well taken and is correct. Further, as to the appellants had known the other party using its deceptively similar name and they were trading in their own name has to be shown by the department. the department has also to show that there was deliberate intention to evade payment of duty as suppression implies that the assessee had knowledge of such use and they had connection with the use of the brand name of other person. For the purpose of extending the period under Section 11A the Revenue has to show that the assessee had intention to evade payment of duty by affixing the brand name of another person by showing nexus and connection between the two parties in using the brand name. In this case, the Revenue has not brought the manner in which the appellants have utilised the brand name of other person at Ahmedabad. On perusal of the mark, trade name used by the appellants with that of the other party at Ahmedabad, there is a marked difference in the logo attached to the Ahmedabad party's trade name. The Tribunal in the case of AG/ Switches v. CCE, and in the case of Rukmani Packkwell Traders (supra) have examined identical matter wherein the issue of deceptively similar and not similar name of the specified person using brand name, came up for consideration and the Tribunal came to a detailed conclusion that deceptive name in the matter shows that there was no common trade name between them. The Tribunal held that the benefit of the Notification cannot be denied. We are of the considered opinion that the matter raised by the learned Counsel have not been gone into by the Collector in his order and the matter is required to be sent back to the Collector for de novo consideration. Therefore, we set aside the impugned order and remand both the appeals for de novo consideration in the light of Board's circular and judgment in the case of AGI Switches (P) Ltd. (supra) and also in the case of Rukmani Packkwell Traders (supra). The Revenue has to clearly indicate as to how there was connection between the trade name of the other person and how they are identical and not deceptively similar as has been held in the two citations noted above. The appellants had no information about existence of said name of any other person with deliberate intention to withhold information to evade payment of duty. In the case of CCE v. HMM Ltd. as and in the case of TNHB--as , the Apex Court has clearly laid down that the Revenue has to show that the assessee had intention to evade payment of duty by suppression of facts. In this case, appellants contended that they had no knowledge of the use of such name by another unit at Ahmedabad. Appellants' unit was a tiny unit run by a Propriety and their sale was confined to Bangalore district only. This aspect of the matter requires re-consideration for the purpose of invoking the longer period of limitation. The Collector shall gone (sic) into these aspects of the matter and decide the case de novo after granting opportunity of hearing to the appellants and pass a speaking order. Ordered accordingly.
15. On a reading of the above judgment, we notice that a similar matter has been remanded for de novo consideration and therefore it is but proper that we also pass the similar order for remand to re-examine the issue in the light of discussions made above and in the light of judgment rendered in Continental Power Systems (supra) wherein also the authorities were directed to reconsider the Board's Circular No. 52/92/94 dated 1.9.94 and also all aspects pertaining to limitation and non-imposition of penalty.
16. In that view of the matter, the impugned orders are set aside and matter remanded to the original authority for de novo consideration. The original authority shall grant an opportunity of hearing and re-examine the entire issue in the light of findings recorded and in the light of explanation to the notification, Board's circular, citations and evidence that would be produced by assessee during de novo proceedings. Ordered accordingly Cross appeals are also remanded for demand.