ORDER
K.C. Mamgain, Member (T)
1. The issue involved in these 3 (three) appeals is whether goods manufactured and cleared by the appellants, M/s. SSS Wood Industries, in the brand name of ‘Anutone’ are eligible for SSI exemption.
2. Shri S. Raghu, learned Advocate appearing for the appellants stated that the appellants arc manufacturers of Designer Ceiling Tiles and Wood Wool Boards classifiable under sub-headings 4406.90 and 4407.10 of the Central Excise Tariff Act, 1985. They are using the name ‘ANUTONE’ on their products and this word ‘ANUTONE’ belongs only to the appellants. This fact was also indicated in the declaration filed by them, with the department. The word ‘Anutone’ is used by the appellants for the designs acoustic panels created by them. These designs were developed by Shri Sandeep Mittal, Managing Partner of the appellant’s firm and these were registered under Copyright Act by Shri Sandeep Mittal. The Central Excise Officers visited their factory on 28-2-98 on the presumption that the appellants are clearing goods bearing brand name ‘ANUTONE’ which does not belong to them and thereby they are wrongly availing the benefit of Notification No. 1/93, dated 28-2-93. After conducting verification, a show cause notice was issued to them demanding duly of Rs. 16,75,042/- for the period from 1-4-94 to 20-2-99. Penalty was also proposed besides demanding duty on the appellant’s firm as well as on the second appellant, Shri Sandeep Mittal, Managing Partner. Another show cause notice was also issued to them for the period from 21-2-99 to 31-12-99 demanding duty of Rs. 2,39,473/- and also proposing penalty under Section 11AC of the Central Excise Act and interest under Section 11AB. The first show cause notice was adjudicated by the Additional Commissioner who demanded duty of Rs. 16,29,730/- and imposed equivalent penalty. He also imposed personal penalty of Rs. 1000/- on Shri Sandeep Mittal. The second show cause notice was adjudicated by the Deputy Commissioner in which he demanded duty of Rs. 2,39,473/- and imposed equivalent penalty on the appellant’s firm, besides demanding interest. On appeal, the Commissioner (Appeals) rejected their appeal except the modification that penalty under Section 11AC and interest under Section 11AB cannot be imposed for the irregularities committed prior to 28-9-96 and in the second appeal for the duty demanded from 21-2-99 to 31-12-99, the Commissioner (Appeals) held that penalty under Section 11AC and interest under Section 11AB cannot be imposed.
3. The learned Advocate pleaded that in the instant case, what is registered is only a literary catalogue and not any product under Trade and Merchandise Marks Act. The Commissioner (Appeals) has wrongly concluded that the appellants are not entitled to SSI benefit since they are affixing brand name ‘Anutone’. The registration under Copy Right Act is entirely different from the registration under Trade and Merchandise Marks Act. The appellant’s firm is in existence since 1987 and the name ‘Anutone’ was fixed on their products since 1990. The registration under Copy Right Act was only done in the year 1997 by Shri Sandeep Mittal. This conclusively proves that the brand name ‘Anutone’ belongs to the appellant only. The appellants are not manufacturing branded goods of anybody else and the brand name belongs to them only and they have been correctly filing the declaration under Rule 17313. The Tribunal in the following cases has clearly held that when the ownership of brand name is proved denial of SSI benefit is unjust and illegal –
(i) Opus India - 1992 (62) E.L.T. 447 (ii) Taj Serpent Eggs Factory - 1996 (85) E.L.T. 78
The reliance placed by the Commissioner (Appeals) on the ratio of decision of the Larger Bench in case of Namtech Systems Ltd. [2000 (115) E.L.T. 238 (Tri. – LB)] is not sustainable as facts of the present case are entirely different. Since there was no mis-declaration or suppression or misstatement on the part of the appellants, the demands were time-barred. The appellants were under bona fide belief that they are not engaged in the manufacturing of any branded goods under brand name of somebody else. The name ‘Anutone’ is being used by them for the products since 1990. The ld. Advocate also relied upon the following decisions of the Tribunal –
(i) J. Prasad Polymers v. CCE, Meerut - 2003 (155) E.L.T. 486 (T) = 2003 (58) RLT 17 wherein it was held that Brand name - 'Sundar' registered by M/s. Sada Ram & Sons for their artistic work under Copy Right Act and not under Trade and Merchandise Act - benefit of Notification No. 1/93-C.E., dated 28-2-93 available as appellants are using their own brand name. (ii) Elex Knitting Machinery Co. v. CCE - 2003 (158) E.L.T. 499, wherein it was held that Sole proprietor of appellant firm by virtue of being partner in firm owning brand name also becomes co-owner of brand name in question, hence cannot be said to have used brand name of another person while manufacturing and clearing goods in individual capacity benefit of Notification No. 1/93-C.E., dated 28-2-1993, not deniable. (iii) Premier Engineering Associates v. CCE - 2003 (162) E.L.T. 464.
4. Shri L. Narasimha Murthy, SDR appearing for the Revenue pleaded that under Notification Nos. 1/93-C.E., dated 28-2-93, 16/97, dated 1-4-97 and 9/98, dated 2-6-98, the 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, such as 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. In the instant case, the invented word ‘Anutone’ is used to identify the acoustic boards and panels. The copyrights of the various designs have been duly registered in the name of Sandeep Mittal. The trade name has been held by Sandeep Mittal in his individual capacity. The individual and firms being two distinct entitie’s, the appellants plea that they are the owners of the brand name is not correct. It is clear that the appellants, M/s. SSS Wood Industries, are a partnership firm and in its entity has affixed the brand name ‘Anutone’ which belongs to Sandeep Mittal in his individual capacity. M/s. SSS Wood Industries have mis-stated in their classification declarations filed by them under Rule 173B of the Central Excise Rules, 1944, that they are not manufacturing any goods in the brand name of others, although they have in fact manufactured and cleared the goods with the brand name ‘Anutone’ which did not belong to them and which in fact belongs to Sandeep Mittal in his individual capacity. Therefore, extended period of limitation under proviso to Section 11A of the Central Excise Act is clearly applicable.
5. We have carefully considered the submissions made by both the sides. We find that the appellants have claimed that they are using the trade/brand name ‘Anutone’ since 1990. This has not been challenged by the Revenue. The product profile and designs of “Anutone Wood Wool Boards Plain & Embossed” registered with the Registrar of the Copyright Act is a literary and artistic piece of work. We find that the brand name ‘Anutone’ is not registered under Trade Marks Act for the product manufactured and traded by the appellants. The literary work on “Anutone Wood Wool Panels” is registered in the name of Shri Sandeep Mittal as a literary piece under Copy Right Act. It is not a brand name or trade name of Sandeep Mittal. Shri Sandeep Mittal is the owner of the copyright of literary work. The appellants, M/s. SSS Wood Industries are the manufacturers of the Wood Wool Boards and Panels and in the market these are being sold by M/s. SSS Wood Industries, under their trade/brand name ‘Anutone’. They have claimed ownership of the trade name ‘Anutone’. Registration of literary work about a product is different from the product manufactured and sold in the market under a trade/brand name. Therefore, ‘Anutone’ cannot be held as a trade name or a brand name registered in the name of Shri Sandeep Mittal. The claim of the Revenue that the ‘Anutone’ is a brand name of Sandeep Mittal cannot be held correct as no such brand name is registered in the name of Sandeep Mittal under Trade Marks Act. What is registered in the name of Shri Sandeep Mittal is the designs and literature on “Anutone Wood Wool Boards Plain & Embossed”. Therefore we hold that ‘Anutone’ is not the brand name registered in the name of Shri Sandeep Mittal. Since the ‘Anutone’ trade name is being used by the appellants since 1990 and the Revenue has failed to produce any evidence that somebody else is owner of the trade name, therefore, we have to accept the ownership of this trade name ‘Anutone’ with the M/s. SSS Wood Industries. Therefore, they are entitled to SSI exemption. Accordingly, the demands confirmed against them and penalty imposed on M/s. SSS Wood Industries and Shri Sandeep Mittal are not sustainable. We, therefore, set aside the orders of the lower authority and allow all these 3 (three) appeals.