Customs, Excise and Gold Tribunal - Calcutta
Commr. Of C. Ex. vs West Bengal Chemical Industries Ltd. on 6 March, 2006
Equivalent citations: 2008[10]S.T.R.111
ORDER
T.V. Sairam, Member (T).
1. The issue involved here is whether by inscribing the following wordings, the assessee has used a brand name or otherwise:
Package Drinking Water mktd. by Mother Dairy, Calcutta.
These are two appeals filed by the Revenue being aggrieved with the Order of the Commissioner (Appeals) who has observed in the impugned Order dated 4-6-2004 as follows:
As regards the brand name, while making a distinction between 'House Mark' and 'Product Mark' or 'Brand Name', the Hon'ble Supreme Court in the case of Astra Pharmaceuticals v. CCE, Chandigarh held that 'Product Mark' or 'Brand Name' (invariably a word or a combination of a word and letter or numeral) is the one by which the product is identified and asked for. In the instant case, Mother Dairy is the marketing agent of the manufacturer and in the label, it was clearly mentioned by them that they were only marketing the product. The name and address of the manufacturer was clearly mentioned on the label of the product. Thus I do not consider the words 'marketed by Mother Dairy' as brand name since this particular product (Mineral Water) is not identified with Mother Dairy and is not asked for in the market as a product of Mother Dairy. No consumer asks for 'Mother Dairy ' when he or she wants to buy this particular product, while we normally ask for 'Aquafina' or 'Kinley' or 'Bisleri' when we want to buy these specific brands of Mineral Water. In the light of above case decisions submitted by the appellant, I find that the impugned marking is not a 'Brand Name' or 'Product Name'. I, therefore, set aside the impugned order and allow the appeal. The Stay Application is accordingly disposed of.
2. Learned J.D.R. contends that "Mother Dairy" is a Brand Name and also a registered Trade Mark, and the assessee who is a small-scale industry has made use of this Brand Name, as evidenced by a Label presented before me by the learned J.D.R. It has been argued that this Brand Name gives an advantage to the small-scale manufacturer who is claiming exemption, which was not the intention of the Small-Scale Exemption Notification No. 1/93-C.E. According to the learned J.D.R., the label containing the words 'Mother Dairy' Indicates a connection in the course of trade between the product and some person using such name or mark, and hence the Central Excise Duty is chargeable from the small-scale manufacturer.
3. Nobody represented the respondent company in these two cases, although notices were sent to them.
4. I find from the Grounds of Appeals that it has been argued by the Revenue that no Mineral Water is sold without a brand name and the wordings -'Mother Dairy'- should definitely indicate a brand name of the Mineral Water manufactured by the assessee herein. I have also carefully examined the case records and the arguments advanced by the learned J.D.R. for the Revenue. The Commissioner (Appeals) in the impugned Order has observed that what is mentioned in the label is the name of the marketing agent namely, 'Mother Dairy', and it is also clearly spelt out in the label by the wordings - "marketed by Mother Dairy", and as such these, words cannot be considered as making use of a Brand Name. The Commissioner (Appeals) has also observed in the impugned Order that no consumer asks for 'Mother Dairy' when he or she wants to buy Mineral Water by referring to a specific brand - 'Aquafina' or 'Kinley' or 'Bisleri'. I also find that 'Mother Dairy' even if it is taken as a Brand Name, does not amount to a single product, which rather refers to a basket of products that include milk, butter, cheese, mineral water and what not. Taking into account the fact that the label clearly indicates that the product in question is marketed by 'Mother Dairy', it cannot be said that the brand name - 'Mother Dairy' - has been used. I, therefore, do not find any reason to interfere with the Order of the Commissioner (Appeals) in these two cases. The Revenue's appeals are accordingly dismissed.
(Pronounced and dictated in the open Court.)