ORDER
T.K. Jayaraman, Member (T)
1. These appeals have been filed against Order-in-Appeal Nos. 36 & 37/98 dated 18.9.98 passed by the Commissioner of Central Excise (Appeals), Chennai.
2. Brief facts of the case are as follows:
The respondents are the manufacturers of Kesavardhini hair oil. There are actually two units situated at different places having different proprietors. Sh. Kailash Mull Dugaris the Proprietor for the unit at Madras 87 and Sh. Suresh Mull Dugar, Proprietor for the unit situated at Madras-78. Both of them used the same brand name “Kesavardhini” for the similar product and availed exemption under Notification No. 140/83 dated 5.5.1983. Revenue proceeded against both of them for denying the benefit of the exemption. The original authority observed that the respondents are two different proprietors of two different companies with the right to use the brand name in different territories and as per the records both of them registered the brand and none of them have objected to the other using the brand name and hence dropped further proceedings. The Revenue appealed to the Commissioner (Appeals). The Commissioner (Appeals) upheld the order of the original authority. The Revenue has come before this Tribunal against the impugned order in appeal on the following grounds;-
a) Here two different firms are owning the same brand name and as per Central Excise Notification No. 140/83 where the brand is owned by two different entities, none of them is entitled to the exemption.
3. Smt. R. Bhagya Devi, ld. SDR appeared for the Revenue and Sh. J. Sankararman, ld. Counsel for the respondents.
4. Ld. Counsel urged that when brand name is owned by more than one person each of which is the owner of the brand name and exemption cannot be denied. In view of the following decisions:
i) Bentex Motor Control Industries 2002 (129) ELT 679
ii) Vijaya Chemicals & Toilet Works
5. The Supreme Court in the case of Chandigarh v. Mhaan Diaries observed as follows:
all the authorities below have held that when the respondent sell Pickles in pouches using only the name of their own company, they would not be disentitled for claiming the benefit of the Notification. We see no reason to take a different view on this aspect.
The Supreme Court having ruled as above, pointed out that in that case, the respondent was using Trade mark “MAHAAN” with additional words “Taste Maker” as his brand name and therefore, it is stated that when the respondent get the Trade Mark Registered they would be entitled for exemption. In the case before the Tribunal, both the manufacturers who claimed exemption are recognized by Trade Mark Registrar as owner of the brand name of Kesavardhini and both are entitled for exemption. Ld. SDR reiterates the grounds of appeal.
4. We have gone through the records of the case carefully. The condition of Central Excise Notification No. 140/83 reads as follows:
The exemption contained in this Notification shall not apply to the specified goods bearing a brand or trade name (registered or not) of another person.
In the present case, the two units are bearing the brand name Kesvardhini, the area of operation of each unit is different. One unit operates from Tamil Nadu, Karnataka, Gujarat, Chandigarh and Andhra Pradesh and rest of the areas in India are for the second units. Each unit has registered the Brand name Kesavardhini. In view of the case law cited by the Counsel for the Respondents we hold that each unit owns the brand name. Moreover, the condition in the Notification does not say if two different persons owned the same brand name both are not eligible for the exemption. The condition is to the effect that the exemption shall not apply to the specified goods bearing brand name or trade name of the another person. Since in this case, the goods bear the brand Kesvardhini and this brand name belongs to each of the unit by virtue of the Registration we cannot say that the condition in Notification No. 140/83 has not been fulfilled. In these circumstances, we do not find any merit in the Revenue appeal and the same is rejected.
(Operative portion of the order was pronounced in open Court on 23.9.2005)