ORDER
T.K. Jayaraman, Member (T)
1. These two appeals are filed by the Revenue against the Orders-in-Appeal Nos. 79 & 80/2003, dated 11-12-2003, passed by the Commissioner of Customs & Central Excise (Appeals), Hyderabad.
2. The Commissioner (Appeals) relied on the judgments of CEGAT, New Delhi in the case of Commissioner of Central Excise, Chandigarh v. Fine Industries, and set aside the order of the Additional Commissioner. The Commissioner (Appeals) held that the Department had not produced any proof that the persons whom they allege are the owners of the brand name, are also manufacturing the specified goods and clearing the same under their brand name. According to the Revenue, the decision of the Commissioner (Appeals) is not sustainable in view of the decision of the CEGAT, New Delhi in the case of Beco Chemicals (P) Ltd. v. Commissioner of Central Excise, Raipur, wherein it was held that plea that goods manufactured by a person and another person through brand name the first person is alleged to have used were not identical is found irrelevant for Notification No. 1/93-C.E. In view of this, the Revenue has filed appeals against the Commissioner (Appeals)’s orders.
3. Shri L. Narasimha Murthy, learned SDR appeared for Revenue and S/Shri H.S. Srinivasa and T. Rajeswara Sastry, learned Advocates appeared for the Respondents.
4. The learned SDR reiterated the reasoning in the Orders-in-Original.
5. The Respondents in their cross-memo has urged the following points :
(i) The brand name FERICH-SR is assigned to the respondent by a deed of assignment dated 25-11-98 and hence according to the decision of the Apex Court in the case of CCE, Ahmedabad v. Vikshara Trading and Invest. P Ltd. – , the respondents are owners of the brand name FERICH-SR.
(ii) As regards the product bearing the brand name DOXYREK-DR, the adjudicating authority denied the benefit on the ground that ‘House Mark’ on carton box of the product belongs to M/s. Rekvina Laboratories, Baroda. The house mark is not a brand name or product name as held by the Hon’ble Apex Court in the case of Astra Pharmaceutical (P) Ltd. v. CCE, Chandigarh, followed by similar decisions by the Tribunal. Hence, the findings of the adjudicating authority is incorrect.
(iii) As regards the brand name ZIFF-SR, the same is assigned to the Respondent vide agreement dated 26-10-98. The adjudicating authority denied the benefit on the ground that on the package of the product it is clearly stated the goods are marketed by M/s. Panjon Pharma Ltd. Merely because the name of marketing company is appearing prominently on the carton, the SSI exemption is not deniable to the respondents as held by the Tribunal in the following cases :
(i) CCE, Jaipur v. Thio Pharma, (ii) DCI Pharmaceutical Pvt. Ltd. v. Supdt. of C.E. (DIV), Panaji, .
6. We have gone through the rival contentions. In these appeals, three brand names are involved. The Original Adjudicating Authority denied the SSI exemption benefit on the ground that the respondents were using the brand name which belong to others. There was a further finding that the house mark of M/s. Rekvina Laboratories, Baroda was used on the carton box of the products DOXYREK-DR. It was also stated that in the carton of the product ZIFF-SR, the marketing company’s name is printed and hence the exemption is not available. The respondents have clearly established that the brand names FERICH-SR and ZIFF-SR belong to them in view of the assignment. They have rightly relied on the decisions of the Apex Court in the matter. As regards the product DOXYREK-DR, Revenue’s objection is that the house mark appears in the carton. This objection is also not having any force in view of the decision of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. (supra). Though Revenue has come in appeal against the Orders-in-Appeal, in view of the decision of the Tribunal in the case of Beco Chemicals (P) Ltd. case (supra), no purpose will be served by remanding the matter to the Commissioner (Appeals). In the light of the facts available on records, the respondents are the owners of the brand names and Revenue has no case for denying the exemption to them. In view of our above findings, accepting the contention of the Respondents, we dismiss the Revenue’s appeals.
(Operative portion of the order has been pronounced in the open Court on conclusion of hearing)s