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2. The learned single Judge, in substance, opined that certain stencil marks on the components manufactured by the Units made by them would make the components, though manufactured by the Units, as having been affixed with a brand name or a trade name of BHEL, which is not eligible for the grant of exemption under the Notification within the meaning of Clause (7) read with Explanation VIII of the Notification. The learned single Judge accepted the position that the Units are the manufacturers of the components, though they may be doing job works for BHEL. As such, prima facie, the components manufactured by the Units must have the benefit of the Notification. Only by construing the stencil marks made by the Units on the components manufactured by them, as the brand name or trade of BHEL, the benefit of the exemption has been denied to the Units. This construction of the learned single Judge is the subject matter of challenge in these two writ appeals.

"14 Nos.
872.36 kgs.
WO 0237.415.1.77 DU 001 R83 Mettur"

In fact, samples of the components manufactured by the Units were produced by Mr. P. Narasimhan, learned Senior Central Government Standing Counsel before us today and we find that there has not been any variation with regard to the details of the inscriptions or markings found on such components, from those given in the aforesaid Grounds of Writ Appeals. One thing must be clearly noted and that is there is no marking or inscription of the name of BHEL as such on the components manufactured by the Units. A bare reading or visual inspection of the markings or inscriptions does not convey anything, much less as to what headings or details they are referable. This is only a matter of explanation offered by the parties. It is stated that the first inscription relates to Quantity; second to Weight; third to BHEL Work Order Number; fourth to Product Number; fifth to the Code Number allotted to the individual ancillary Units of BHEL and sixth to the destination of the goods. We have not heard any submission from Mr. P. Narasimhan, learned Senior Central Government Standing Counsel, saying that the inscriptions by way of stencilling on the components manufactured by the Units, bore or bear any other marking or inscription. The learned single Judge proceeded only on the above factual basis and we are also obliged to proceed on the same factual basis.

5. Clause 7, as we could see from the above extract, says that the exemption contained in the Notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name, registered or not, of another person who is not eligible for the grant of exemption under the Notification. We can take it that the "another person who is not eligible for the grant of exemption under the Notification" in the present case is BHEL. Equally so we can take it that the manufacturers are the Units, and the specified goods are the components manufactured by the Units. Then as to what should constitute a brand name or trade name of BHEL has got to be gleaned by looking at Explanation VIII. The registration or otherwise of the brand name or trade name would not count. The name or mark is equated to symbol, monogram, label, signature or invented word or writing. But, a mere finding of symbol, monogram etc., on the goods would not bring the matter within Explanation VIII, so as to fall within the exception to the exemption set out in Clause 7 to the Notification. Something more is required by Explanation VIII and that is, the above markings must have been used in relation to 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 BHEL using such name or mark with or without any indication of the identity of BHEL. Here, there is no symbol, no monogram, no label and no signature of any nature much less of BHEL found on the components manufactured by the Units. The markings or inscriptions found on the components may amount to invented words or writings. But the markings or inscriptions have not been and are not being used by BHEL at all. They have been used and are being used by the Units and Units alone, may be pursuant to the contractual requirements between BHEL and the Units, even as per the averments in the counter-affidavit of respondents 1 to 3. The markings or inscriptions, individually or cumulatively do not go to constitute a name or a mark such as symbol, monogram etc., of BHEL, used by BHEL in relation to the components manufactured by the Units. They may have a purpose to serve. But certainly they do not by themselves constitute a name or mark used by BHEL. But the stress, which we could spell out cumulatively from the language used in Explanation VIII, is that the name or mark such as symbol, monogram, etc., should have been used by BHEL for the purpose of indicating or so as to indicate a connection in the course of trade between the components and BHEL using such name or mark. It is true that by a bare looking at the inscriptions or markings, or by a bare visual inspection, there need not be an indication of the identity of BHEL. But fundamentally these markings or inscriptions do not go to constitute a name or mark of BHEL; much less used by BHEL in relation to such components. There is a faltering with regard to the satisfaction of the primary ingredient required by Explanation VIIF.

6. From what has been noted as factual details of the inscriptions or markings found on the components manufactured by the Units, at the risk of repetition, it must be stated that it is quite impossible to spell out that they go to form any brand name or trade name of BHEL. The learned single Judge was led into a thinking that since from the markings or inscriptions used by the Units, the persons at the receiving end of the components, namely, A.C.C. - Wadi, will definitely know that the components are sent to them in terms of the contract, entered into between BHEL and ACC - Wadi, Clause 7 read with Explanation VIII is attracted. The possibility of such a knowledge is no criterion at all to be applied to invoke Clause 7 read with Explanation VIII. For that matter, it could be stated that the whole gamut of the contractual dealings should be delved into to find out the implications of the contract and the source and end of the dealings. That could not and should not be the intendment behind Clause 7 read with Explanation. We are concerned only with the markings or inscriptions found on the components manufactured by the Units and nothing more. We must find out as to whether these markings or inscriptions by themselves constitute a brand name or trade name that is to say, a name or a mark of BHEL. That it is possible for the persons at the receiving end, namely, ACC - Wadi to comprehend that delivery is being effected pursuant to contract between themselves and BHEL is not the decisive test or factor. If the intention was the other way about, certainly the exception to the exemption could have been worded or couched differently by merely stating that if the specified goods have been produced or are being produced by small scale industrial undertakings for another person, who is not eligible for grant of exemption, the exemption under the Notification shall not apply to the said goods. Such is not the language used in Clause7, which is an exception to the exemption. In our view, the learned single Judge has not assessed the question putting the proper construction on Clause 7 read with Explanation VIII to the Notification and we are not able to appreciate and accept the reasonings expressed by the learned single Judge for denying the exemption asked for by the petitioners under the Notification. It is true that Exemption is the creation of the statute and must be construed strictly and cannot be extended. But here apparently the Exemption under the Notification applies to the components manufactured by the Units. The endeavour on the part of respondents 1 to 3 is to deny that exemption by invoking the clause of exception to the Exemption. The Exemption certainly should not be whittled down by importing limitations not specifically inserted by the language used in Exception clause.