ORDER
P.G. Chacko, Member (J)
1. The respondents in this appeal of the department were engaged in the manufacture of “Linear Measuring Instruments” [Heading 84.66 of the CETA Schedule] during the material period. In 1994-95 and 95-96, they removed their products after affixing the brand name “AIDEES NEWALL”. The department found, on investigations, that “NEWALL” was a brand-name which belonged to the respondents’ collaborators Newall Measurements Systems and, accordingly, the department took the view that all clearances with the above brand-name were hit by the bar created in para-4 of SSI Notification No. 1/93-CE dated 28.2.93 (as amended). The said para of the Notification had placed an embargo on grant of SSI benefit to goods cleared by SSI units after affixing the brand name/trade mark of another person. The SCN issued by the department denying SSI benefit to the above clearances and demanding duty thereon was contested. The original authority rejected the assessee’s objections and confirmed the demand and also imposed a penalty on the party. The appeal preferred by the assessee against the order of that authority succeeded. Hence the present appeal of the department against the order of the appellate Commissioner.
2. Ld. SDR reiterates the grounds of this appeal and relies on the apex court’s judgment in CCE Trichy v. Rukmani Pakkwell Traders , She has also referred to the apex court’s judgment in CCE Raipur v. Him Cement . There is nobody to oppose this appeal today despite notice, nor is there any request of the respondents for’ adjournment. In the circumstances, we are inclined to dispose of this old appeal of the year 1999.
3. After examining the records, we find that “NEWALL”, admittedly, belonged to the respondents’ collaborators. The respondents claimed “AIDEES NEWALL” to be their own brand-name different from “NEWALL” which belonged to their collaborators Accordingly, they sought to get over the bar created in para-4 of the Notification. After examining the grounds of the appeal and considering the ld. SDR’s submissions, we have to decide, at the outset, on the question whether the brand-name in question is different from “NEWALL” in terms of the definition of “brand-name” as given in Explanation IX to the above Notification, which reads as under:
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, code number, design number drawing number, 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.
A decision on this question must squarely rest on the above provision of the Notification. Could the brand-name “AIDEES NEWALL” indicate a connection in the course of trade between the branded goods and the owner of the brand name “NEWALL” ? This question must be answered in the affirmative in the light of the apex court’s decision cited before us. In the case of Rukmani Pakkwell Traders (supra), the question considered by the Supreme Court was whether, where the letters “ARR” with the photograph of the architect of that brand-name were used with certain changes on goods manufactured and cleared by an SSI unit, the branded goods could be held to have been cleared under the brand name/trade mark of another person. Their lordships found that, even after the changes, the letters “ARR” remained in the brand-name and the same were enough to establish a connection in the course of trade between the branded goods and the architect of the above brand-name. Accordingly, the benefit of Notification No. 1/93-CE ibid was denied to Rukmani Pakkwell Traders (SSI unit). The view taken in the above case was followed by the court in the case of Hira Cement (supra) also.
4. In the instant case, we have found that “NEWALL” was a pre-existing brand name belonging to the respondents’ collaborators. The respondents added their own word to it, thereby making up the subject brand-name “AIDERS NEWALL”. Upon examination of this brand name in the light of Explanation IX to Notification No. l/93-CE ibid, we find that “AIDEES NEWALL” certainly indicated a connection in the course of trade between the goods bearing that brand-name with the owner of the brand-name “NEWALL”, ,which brand-name had already made an imprint in the minds of the market people, Accordingly, the branded goods in question would be hit by para-4 of the Notification, with the result that the clearances effected by the respondents during the period of dispute, were not eligible for SSI benefit. The demand of duty is, therefore, sustainable. In the facts and circumstances of the case, the penalty imposed on the party by the original authority also appears to be reasonable. Consequently, the impugned order is set aside and this appeal is allowed.
(Dictated and pronounced in open Court)