New Themo Fabricators vs Cc And Ce on 19 March, 2004

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Customs, Excise and Gold Tribunal – Tamil Nadu
New Themo Fabricators vs Cc And Ce on 19 March, 2004
Equivalent citations: 2004 (116) ECR 439 Tri Chennai
Bench: S Peeran, R K Jeet


ORDER

S.L. Peeran, Member (J)

1. The appellants are aggrieved with Order-in-Appeal No. 119/2002 (CBE)(GVN), dated 30.5.2002 by which the Commissioner has rejected the appellant’s plea that they are not affixing the trade name or brand name of the supplier of the raw material. The appellants are job workers of M/s Emmar Equipments. M/s Emmar Engineering Corporation and M/s Emeskay Engineering Private Ltd., in order to identify the goods of the respective supplier. The had placed the name plate of the respective supplier on the goods. These name plates clearly indicated the company’s name and not their brand name. The department rejected the appellant’s plea that the case was covered by the Apex Court judgment rendered in the case of Astra Pharmaceuticals (P) Ltd., v. Collector of Central Excise, Chandigarh and that of Tribunal rendered in the case of Shree Krishankeshv Lab. Ltd., v. Collector of Central Excise. Ahmedabad . The Commissioner has held that affixing the name plate of the Company of the supplier amount to use of their brand name and hence, they are not entitled to the benefit of the SSI Notification No. 175/86 and 1/93.

2. Ld. Consultant Shri Balagopal submits that similar job workers were also once proceeded with for availing the benefit of the notification and one such job workers is Premier Engineering Associates. They had challenged a similar order passed by the Commissioner in Appeal No. E/1833/98. The said appeal came up for consideration before this Bench and this Bench by Final Order No. 272/2003, dated 24.4.2003 has allowed the appeal by applying the ration of the Apex Court judgment cited above.

3. The Ld. JDR Shri C. Mani had relied on the Apex Court Judgment rendered in the case of Indian Management Advisors and Leasing Put. Ltd. v. Commissioner of Central Excise .

4. Ld. Consultant submits that they are not affixing brand name or trade name but only had put the label of the respective supplier name. He files a copy of the judgment.

5. Ld. Consultant further submits that the Tribunal in a similar job workers case by Final Order No. 272/2003, dated 24.4.2003 has clearly held that the Judgment of Indian Management Advisors and Leading Pvt. Ltd. v. Commissioner Of Central Excise (supra) is not applicable to the facts of the case. The Tribunal has also noted large number of other citations. The arguments of the Consultant and the findings are recorded in Paras 2-4 of the above noted order.

6. We have carefully considered the submissions made by both the sides and have perused the Final Order passed by the Tribunal in similar facts and circumstances against another job worker of the supplier of raw materials in the case of Premier Engineering Associates v. Commissioner of Central Excise, Coimbatore. The Tribunal in the Final No. 272/2003, dated 22.4.2003 in paragraph 2-4 held as follows:

2. Ld. Consultant Shri Section Kandasamy relied on the Apext Court judgment rendered in the case of Astra Pharmaceuticals (P) Ltd. v. CCE, as , wherein, the Apex Court have clearly held that affixing the ‘house mark’ on the container or packing of the product manufactured by the appellant could not amount to use of brand name, he submits that this judgment has been applied by the Tribunal in large number of cases. He referred to the Judgment of the Tribunal rendered in the case of Panchsheel Enterprises v. CCE as wherein the Tribunal held that markings put on product to distinguish buyers are not trade mark/brand name particularly when such marks do not belong to any person in particular. Reference was drawn to the Tribunal’s judgment rendered in the case of Intervalve (India) Pvt. Ltd. v. CCE as wherein also use of word ‘iv’ merely an abbreviation of manufacturer’s name does not amount to using of brand name and the party is dis-entitled for the benefit of the notification. Further reference was drawn to the judgment of the Tribunal rendered in the case of Rajdoot Paints ltd. v. CCE as wherein also the word ‘Glidden’ was only ‘house mark’ and no customer recognised the final product with reference to that word ‘Glidden’ and hence the Tribunal held that such use of ‘house mark’ could not dis-entitle to benefit of SSI exemption. The judgment of the Tribunal in the case of Nippa Chemicals (Pvt.) Ltd. v. CCE as was also referred wherein the party had merely indicated the name of the company and the Tribunal held that affixing name or mark of the company is not same as marking their name and hence the benefit of notification cannot be denied. Counsel submits that in the present case no brand name or trade name were used. The trader who was placing the orders on the appellant as a job worker had only affixed his label of the company and label of M/s. Emmar Engg. Corporation, M/s Emmar and M/s. EMESKAY Engineers Pvt. Ltd. are not trade marks and hence the benefit of notification cannot be denied.

3. DR Shri P. Devaladu reiterated the departmental view. He submits that using brand name even of a non-manufacturer will disentitle the party from availing the benefit of notification and in this regard he relied on the judgment of the Apex Court rendered in the case of Indian Mgt. Advisors & Leasing Pvt. Ltd. v. CCE as .

4. We have carefully considered the submissions made by both sides and have perused the records. Show cause notice dated 1.3.1997 issued by the Commissioner alleged that the appellants were affixing the following names M/s. Emmar Engg. Corporation, M/s. Emmar Equipments and M/s EMESKAY Engineers Pvt. Ltd, owned by other persons and hence the appellants are not entitled to the benefit of SSI exemption. There is no allegation in the show cause notice or in the annexure to the show cause notice that there was a specific brand name owned by other person which was being affixed on the goods. What was fixed on the goods was only of the name plate of the respective buyers who are traders. The name of their company was being fixed and not trade name or brand name. In the light of the Apex Court judgment rendered in the case of Astra Pharmaceuticals (P) ltd. v. CCE (supra) affixing the ‘house mark’ of a company will not make a product patentable one and will not make a branded goods. This view has been expressed by the Tribunal in all the judgments referred to by the consultant noted supra. All these citations clearly apply to the facts of the case. The appellants are not affixing trade name or brand name and the company name of the buyers was fixed which does not dis-entitle the appellant from claiming the benefit of the notification. The Apex Court judgment cited by Ld. DR is not applicable to the facts of the case. In the said case, the brand name and trade name was being affixed. The said brand name and trade name was owned by non-manufacturer which dis entitled appellant from claiming the benefit of notification. In the present case, the appellant had not affixed any trade name of brand name. The name of the company of the trader was being affixed which was not trade name or brand name. Therefore, respectfully following the ration of the judgment cited by consultant, the impugned order is set aside and the appeal is allowed.

On a perusal of the above noted order, it is seen that the Tribunal has clearly held that the job worker has not affixed the brand name or the trade name of the supplier of the raw material and has noted that the issue is covered by the Judgment rendered by the Apex Court in the case of Astra Pharmaceuticals Pvt. Ltd. v. Commissioner of Central Excise (supra). In view of the ration of the above noted judgment, the appellant succeeds in the appeal and the impugned order is set aside and the appeal is allowed.

(Dictated and pronounced in the open Court).

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