ORDER
G.R. Sharma, Member (T)
1. The Collector (A) in the impugned order held that they have failed to produce any other certificate issued by Registrar of Trade mark on records nor any evidence to show that the ownership of brand “Kwality” was otherwise as contended by the Department or that turnover of M/s. Kwality Ice Cream Co. located at B-12, Lawrance Road, New Delhi owned by Sh. P.L. Lamba and Sh. Sunil Lamba was less than 200 lacs per annum. “In the circumstances, the appellants are clearly ineligible to avail exemption under Notification No. 175/86-C.E. as explained in the impugned order with which I agree. I further find that a similar issue has also been decided vide this office Order-in-Appeal No. 204/C.E./KNP/91, dated 7-5-1991 in the case of Ghai Ice Cream Pvt. Ltd., 13-D, Dada Nagar, Kanpur in which the appellants were held ineligible for the benefit of exemption under Notification No. 175/86-C.E. on the same ground. Applying the ratio of the above Order-in-Appeal to the present case, I uphold the impugned order and reject the appeal”. Being aggrieved by this order, the appellants have filed the captioned appeal.
2. The facts of the case in brief are that the appellants manufacture “Kwality Brand Ice Cream” under Chapter sub-heading 2105.00. The appellants are registered with the Directorate of Industries, U.P. as SSI unit. They claimed SSI exemption under Notification No. 175/86-C.E. A SCN was issued to the appellants on 7-11-1990 asking them to explain as to why the benefit of Notification No. 175/86-C.E. should not be denied to them as they were using the brand name to trade name of some other manufacturer, who is not entitled to SSI benefits in terms of Clause 7 of Notification No. 175/86-C.E. In reply to the SCN, the appellants contended that the brand name “Qwality” was being used by them for more than 25 years and such “Kwality” name belonged to them, that the word Kwality could not be registered as it could not belong to any particular person or industrial group. The lower authorities denied them the benefit.
3. Arguing the appeal, Shri P.A.S. Rao, ld. Advocate with Sh. G.L. Murthy, ld. Advocate submits that the “Kwality” Brand name is used by a number of manufacturers of Ice Cream; that it was not registered trade mark or brand name of any individual; that the “Qwality” Brand name was being used by them over a number of items, therefore, it should be considered their own brand, if any. Ld. Counsel refers to the judgment of this Tribunal in their own case and submits that the Tribunal granted stay in that case and remanded the matter to the Collector concerned. He, therefore, prays that in this case also similar view may be taken.
4. Shri R.S. Sangia, ld. JDR reiterating the findings of the lower authorities submits that no case has been made out by the appellants for remand.
5. We have heard the rival submissions. We note that on identical issue in an earlier appeal filed by M/s. Ghai Ice Cream, this Tribunal under its Final Order Nos. E/374-375/93-D, dated 3-11-1993 remanded the matter to the original authority for readjudication in that case for considering fresh evidence brought out by the appellants therein. We find that in this case also the identical issue is involved where in similar evidence has been produced by the appellants herein claiming that they will be eligible for exemption as an SSI unit under Notification No. 175/86-C.E. On considering the submissions made before us, we find that the Tribunal in the earlier case had permitted the production of certain relevant materials as evidence to be taken on record and has remanded to the Asstt. Collector for considering afresh evidence produced and to re-determine eligibility of the appellants herein to the exemption on the basis of that evidence, evidence which was to show that the company based in New Delhi K.I.C Food products are not the exclusive owners of the brand name “Kwality”. We find that the present case also is to be dealt with in relation to the Tribunal’s decision cited above. We accordingly remand the matter to the Collector on the same terms as in the Tribunal’s order in the case of Ghai Ice Cream Co. dated 3-11-1993. Appeal is, therefore, allowed by way of remand.