JUDGMENT
S.L. Peeran
1. The Stay application and appeal are taken up together for disposal, as the matter is covered by the previous CEGAT’s order No. 353/2000 dated 16.3.2000 passed in the appellants’ own case allowing the department’s appeal and holding that the appellants are not entitled to the benefit of Notification No. 75/94 dated 29.394. There is a confirmation of demand of Rs. 8,94,976.91. The Commissioner (Appeals) in the impugned order has followed the Tribunal’s earlier order in assessee’s own case for confirming the demands for the period 29.3.95 to September, 97.
2. We have heard Ld. Sr. counsel Shri Aravind P. Datar and Ld. SDR Shri G. Sreekumar Menon.
3. Ld. Sr. counsel submits that they have appealed against the CEGAT’s order before the Apex Court and their appeal has been admitted. However, there is no stay against the operation of the Tribunal’s order. He submits that the matter could be kept pending till their appeal is decided by the Apex Court.
4. Ld. SDR opposes the prayer of Ld. Sr. Counsel on the ground that the Apex Court has dismissed their stay application and therefore, the final order of the Tribunal in their own case is operative and can be applied to the facts of this case.
5. On a careful consideration, we agree with the Ld. SDR that the issue has been finally decided by the Tribunal in the assessee’s own case and the Revenue appeal has been allowed by holding that assessee is not entitled to the benefit of the Notification No. 75/94. In the circumstance, the Commissioner (Appeals) is justified in following the Tribunal’s earlier Order No. 353/2000 dated 16.3.2000. The findings recorded by the Tribunal in para 6 is reproduced below :-
6. On a careful consideration of the matter and the written submission besides the case law, we are of the considered opinion that Revenue has made out a case for reversing the Commissioner’s order and to uphold the Order-in-Original. The appellants have very prominently in block letters indicated the name of the product as “MAHA BHRINGOL”. The question is as to whether the benefit of the Notification can be extended even if the appellants have changed the name of the Ayurvedic product as found in the text book and sold in a different name. The clarification given by the Board in the form of illustrations as already extracted above shows that this particular case falls within the illustration (c) because the appellants are not using the product as ‘Maha Bhringaraj Oil’ and that they are selling in a different name ‘Maha Bhringol’, which is written in big block letters. The assessee has filed an Affidavit to say that any other person could also the same and they will hot object to it. This is not a point for consideration. We are only required to examine the Notification in question which merely grants benefit to the Ayurvedic Medicaments which are sold under the name as specified in such book or Pharmacoipa as laid down in the Notification No. 75/94 CX dated 25.9.94. On a plain interpretation of the notification, it is very clear that item is not sold as ‘Maha Bhringaraj Oil’ which is admittedly the name given in the authoritative Ayurvedic text. Nothing prevented the assessees to continue to sell in that name. Having changed the name as ‘Maha Bhringol’ they have thereby marketed the goods in this name in the market as so to associate this name with the product. This is not a company’s name or logo, which is being but on the label or on the product, only in such cases, the Apex Court in the Astra Pharmaceuticals case, held that if the name or logo of other company is affixed that by itself cannot be construed as a brand name and this finding was in the context of a different notification, which denied benefit on affixing of brand name or trade name. The question also before us is not to consider any such provision of the notification which denies the benefit on the use of a brand name. As stated, the notification merely refer to the medicaments used in Ayurveda should be manufactured exclusively in accordance with the formula described in the authoritative books specified in First Schedule to Drugs and Cosmetics Act, 1940 and “sold” under the name as specified in such books or Pharmacopia. There is no indication of trade name in this notification, so as to give a finding that the company’s name or its logo is not a brand name as held by Hon’ble Apex Court judgment in the case of Astra Pharmaceuticals Ltd. supra. So long as the appellants who manufactured the product exclusively in accordance with the formula described in the authoritative books, but sells the same under different name not specified in such book or Pharmacopia, then the benefit is simply to be denied as clarified by the Board and in terms of the illustration “(c)” already noted. The other judgments referred to by appellants also are in a different context, than the one under issue, therefore we have to respectfully differ with the Ld. Consultant’s pleas to accept their contention and to reject the Revenue appeal. The other contentions of the Ld. Consultant that the authorisation is not proper, and on this count, appeal is required to be dismissed is also not sustainable. We have examined the authorisation issued by the Commissioner of Central Excise and we find that the authorisation has been properly issued in terms of the Sub-section 2 of the Section 35 A of the Central Excise Act and he has clearly given his opinion that the order passed by the Commissioner of Central Excise (A) Madras under Section 35A is not legal and proper and therefore this is sufficient to hold that the Commissioner has applied his mind in expressing his opinion. Hence the plea taken by the Consultant which is supported by same judgments has been given in cases, where there are no such words “legal and proper” in the authorisation, which is not so in the present case, We, therefore, set aside the impugned order and allow the Revenue appeal.
7. Following the ratio of the above Tribunal’s ruling, we find no merit in this appeal and hence the stay application and appeal are dismissed by confirming the impugned order.
(Pronounced & dictated in open Court)