ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIA No. 128/2003-C.E., dated 28-2-2003 by which the appellants have been denied the benefit of SSI exemption under Notification No. 8/2000 and 8/2001 on the ground that they have used the brand name ‘Hot Breads’ which belongs to M/s. Oriental Cuisines (P) Ltd. The appellants’ contention is that the brand name ‘Hot Breads’ was used by the appellants in terms of Agreement dated 26-7-1999. M/s. Oriental Cuisines (P) Ltd. were not preparing all types of Cakes and Pastries and the same was not sold by them. The appellants were also preparing all types of Cakes and Pastries and they use the name ‘Hot Breads’ on these items, which are dutiable. It is contended by the appellants that bread is exempted from Excise duty and as ‘Hot Breads’ was not being used by M/s. Oriental Cuisines (P) Ltd. for Cakes and Pastries, therefore, it cannot be said that the appellants have used the brand name of another person and on that count, the benefit of the exemption Notification be denied to them.
2. The learned Counsel submit that the issue is no longer res integra and is covered by a large number of judgments including Board’s Circulars. He filed a synopsis of the judements. The same is extracted herein below :
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Sl. Case Law Citation /Particulars Synopsis/Gist No.
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1. Anil Pumps (P) Ltd. v. CCE Brand name registered in the name of individual director used by the Company cannot be said to a brand name of another person. The benefit of SSI notification is not deniable.
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2. Otto Bilz (I) Pvt. Ltd, v. CCE Foreign brand name assigned to the
appellant under agreement by foreign
collaborator, the appellants get
exclusive right to use the brand name
in India. The appellant is entitled
for SSI notification benefit under
Central Excise.
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3. Board Circular No. 88/88-CX.6, Same brand name/trade mark can be
dated 30-12-1988. registered for different classes of
goods owned by different persons. SSI
exemption benefit is not deniable.
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4. Board Circular No. 52/52/94-CX, Based on opinion of the Law Ministry,
dated 1-9-1994 the Board clarified that if a brand
name is not owned by any particular
person, the use thereof will not
deprive a unit of the benefit of the
SSI Scheme.
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5. Gujarat State Fertilizers Co. v. Appellate authorities cannot go
CCE outside the record and make out
entirely a new case.
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6. Hindustan Polymers Co. Ltd. v. Appellate authorities cannot proceed
CCE 1999 (106) E.L.T. 12 (S.C.) on a basis altogether different from
that of the demand notice and cannot
make a new case.
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3. The learned JDR reiterated the departmental findings.
4. On a careful consideration, we notice that the appellants were using the brand name ‘Hot Breads’ belonging to another person viz. M/s. Oriental Cuisines (P) Ltd. in respect of the exempted good viz. Bread in terms of the Agreement dated 26-7-1999. M/s. Oriental Cuisines (P) Ltd. were not preparing Cakes and Pastries and were not using the brand name ‘Hot Breads’ on the same. The appellants were independently using the same on a different product than the one used by M/s. Oriental Cuisines (P) Ltd. Therefore, it cannot be said that the appellants have used the brand name of another person for an item viz. Cakes and Pastries not manufactured and prepared by that other person. All the rulings cited by the appellants clearly apply to the facts of the case. The Board has also clearly clarified the same by the Circulars noted supra by the Counsel. Furthermore, the learned Counsel also pointed out that the Commissioner has proceeded to deny the benefit on new grounds, which were not urged in the Show Cause Notice and in this connection referred to the Apex Court judgments cited supra.
5. The appellants have also contended that the brand name ‘Hot Breads’ used on Cakes and Pastries is being done in their own right and not in terms of the Agreement with M/s. Oriental Cuisines (P) Ltd and nothing forbids them from using the same. This plea has taken support from the citations noted supra. On a careful consideration we find that the appellants are entitled to use the brand name ‘Hot Breads’ on different items manufactured by them viz. Cakes and Pastries, which were not the item manufactured by M/s. Oriental Cuisines (P) Ltd.
6. The Commissioner has taken a new ground inasmuch as that the appellants have used a foreign brand pertaining to a foreign company of the appellant. This is a new ground, which was not alleged in the Show Cause Notice. On this ground also, the impugned order is required to be set aside for the reasons given supra. The impugned order is not sustainable and the same is set aside by allowing the appeal.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)