{"id":168205,"date":"2006-02-02T00:00:00","date_gmt":"2006-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-raipur-vs-ms-hira-cement-on-2-february-2006"},"modified":"2017-05-16T00:18:01","modified_gmt":"2017-05-15T18:48:01","slug":"commnr-of-central-excise-raipur-vs-ms-hira-cement-on-2-february-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-raipur-vs-ms-hira-cement-on-2-february-2006","title":{"rendered":"Commnr. Of Central Excise, Raipur vs M\/S. Hira Cement on 2 February, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commnr. Of Central Excise, Raipur vs M\/S. Hira Cement on 2 February, 2006<\/div>\n
Bench: S.B. Sinha, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  4424 of 2004\n\nPETITIONER:\nCommnr. of Central Excise, Raipur\n\nRESPONDENT:\nM\/s. Hira Cement\n\nDATE OF JUDGMENT: 02\/02\/2006\n\nBENCH:\nS.B. Sinha & P.K. Balasubramanyan\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
 S.B. SINHA, J : .\n<\/p>\n
 \tThis appeal under Section 35L(b) of the Central Excise Act, 1944 (for
\nshort “the Act”) is directed against a final judgment and order dated
\n22.1.2004 passed by the Customs, Excise & Service Tax Appellate Tribunal,
\nNew Delhi in Appeal No. 145\/2004-B whereby and whereunder the appeal
\npreferred by the Appellant herein was dismissed.\n<\/p>\n
 \tThe basic fact of the matter is not in dispute.  The assessee is one M\/s.
\nHira Cement.  It carries on business of manufacture of cement in the town of
\nRaipur.  It is a small-scale industry (SSI) being a proprietory concern of one
\nShri Suresh Agrawal. Another industry, known as M\/s. Hira Industries
\nLimited, is also a manufacturer of cement having a factory in the town of
\nJagdalpur which is situated at a distance of about 300 kms. from Raipur.
\nHira Industries Limited was incorporated and registered under the
\nCompanies Act on or about 20th October, 1983 whereas the Respondent
\nherein was set up in the year 1988.  Hira Industries Limited is not a SSI unit.
\nThe unit of the Respondent was earlier known as Bajrang Bali Cement
\nwhereas that of Hira Industries Limited was known as Jai Bajrang Cement
\nLtd.  The capacity of production of the Respondent’s cement industry is
\nabout 60 tonnes per day whereas that of Hira Industries Limited is 150
\ntonnes per day.\n<\/p>\n
 \tAs a SSI unit, the Respondent herein claimed exemption from
\npayment of excise duty in terms of a notification dated 28.2.1993.  The said
\nnotification was issued under Section 5A of the Act;  paragraph 4 whereof
\nreads as under:\n<\/p>\n
“4. The exemption contained in this notification shall not
\napply to the specified goods where a manufacturer
\naffixes the specified goods with a brand name or trade
\nname (registered or not) of another person who is not
\neligible for the grant of exemption under this notification:\n<\/p>\n
Provided that nothing contained in this paragraph shall be
\napplicable to the specified goods which are component
\nparts of any machinery or equipment or appliances and
\ncleared from a factory for use as original equipment in
\nthe manufacture of the said machinery or equipment or
\nappliances and the procedure set up out in Chapter X of
\nthe said Rules is followed:\n<\/p>\n
Provided further that nothing contained in this paragraph
\nshall be applicable to the specified goods where a
\nmanufacturer affixes the specified goods with a brand
\nname or trade name (registered or not) of the Khadi and
\nVillage Industries Commission or of the State Khadi and
\nVillage Industries Board.”\n<\/p>\n
 \t“Brand name” or “trade name” has been defined in Explanation IX of
\nthe said notification in the following terms :\n<\/p>\n
“Brand name” or “trade name” shall mean a brand name
\nor trade name, whether registered or not, that is to say a
\nname or a mark, such as symbol, monogram, label,
\nsignature or invented word or writing which is used in
\nrelation to such specified goods for the purpose of
\nindicating, or so as to indicate a connection in the course
\nof trade between such specified goods and some person
\nusing such name or mark with or without any indication
\nof the identify of that person.”\n<\/p>\n
 \tThe Respondent herein states :\n<\/p>\n
“Hira Industries Ltd. is thus a Limited company run by
\nShri B.L. Agrawal and other Directors whereas Hira
\nCement is a proprietorship concern owned by Shri Suresh
\nAgrawal.  Shri Suresh is the nephew of Shri B.L.
\nAgrawal and that was the main reason for which both the
\nunits were held to be related parties.  However, there is
\nno other nexus or relation between Hira Industries Ltd.
\nand Hira Cement.  Shri B.L. Agrawal and Shri Suresh
\nAgrawal are not even falls within the ambit of definition
\nof Relatives as defined under Section 6 of the companies
\nAct, read with Schedule 1A of the Act.\n<\/p>\n
The Hira Industries Ltd. has hired a portion of premises
\nof Hira Cement for maintaining its Registered Office at
\nRaipur and a small godown for keeping its goods.  Hira
\nIndustries Ltd. used to purchase Cement from Hira
\nCement and for catering to the needs of its Raipur
\ncustomers Hira Industries Ltd. used to keep those goods
\nin the said godown.  Accordingly, the Registered Office
\nand Telephone Numbers of Hira Industries Ltd. and
\nOffice Address and Telephone Numbers of Hira Cement
\nhappened to be the same.  Both the entities were
\noperating independently.”\n<\/p>\n
 \tThe Appellant contends that  the Respondent, herein was not entitled
\nto claim the benefit of SSI exemption on the ground that the same would not
\napply to the specified goods bearing a brand name of another person, in view
\nof the fact that the Respondent has been using the brand name of said Hira
\nIndustries Limited.\n<\/p>\n
 \tFurther contention of the Appellant is that the said Hira Industries
\nLimited being engaged in the manufacture of cement with the brand name of
\nHira Cement which demonstrates the financial interrelationship of both the
\nconcerns as belonging to a group of industries, known as Hira Group of
\nIndustries.\n<\/p>\n
 \tIndisputably, 10 show-cause notices were issued by the
\nSuperintendent\/ Assistant Commissioner concerned upon the Respondent
\ncalling upon it to show cause as to why the SSI exemption granted to it
\nshould not be disallowed and the duty which was not paid for the period
\nDecember, 1993 and  December, 1997 should not be recovered.  In the said
\nproceedings, the Respondent was held to be not entitled to such exemption.\n<\/p>\n
 \tHowever, on an appeal made by the Respondent, by an order dated
\n28.12.2001, the Commissioner dropped the proceedings inter alia relying on
\nor on the basis of a decision of the Tribunal in Emkay Investment Pvt. Ltd.
\nv. Commissioner [2000 (124) ELT 741 (Tribunal)], holding :\n<\/p>\n
“Thus, I hold that both firms were not using common
\nbrand name on the packings of their products which will
\ndisentitle the notice from benefit of exemption under
\nNotification 1\/93-CE dtd. 28.2.93 as amended, 7\/97-CE
\ndtd. 1.3.97 (Superseded by Notification No. 16\/97-CE
\ndtd. 1.4.97) and 38\/97-CE dtd. 27.6.97 etc. by merely
\nalleging that they have used the brand name of another
\nfirm, i.e., M\/s. Hira Industries Ltd., Jagdalpur.  Hence, I
\nfind that there is no justification in demand of duty of Rs.
\n49,77,206\/- from the noticee for the concerned period
\nalleged in the Show Cause Notices listed in para  I of
\nthis order by disallowing the benefit of exemption
\nnotification No. Notification 1\/93-CE dtd. 28.2.93 as
\namended, 7\/97-CE dtd. 1.3.97 (superseded by
\nNotification No. 16\/97-CE dtd. 1.4.97) and 37\/97-CE
\ndtd. 27.6.97 etc. to the Noticee.”\n<\/p>\n
 \tAs regard the question that the Respondent and the said Hira
\nIndustries Limited are related persons to each other, it was held that they are
\nseparate juristic persons.  An appeal thereagainst was preferred by the
\nAppellant before the Tribunal and by reason of the impugned judgment, the
\nsame was dismissed.\n<\/p>\n
 \tThe Tribunal upon comparing the logos of both Hira Cement and Hira
\nIndustries Limited observed:\n<\/p>\n
“A perusal of the logo and brand name used by the
\nrespondents clearly reveals that their brand name is
\n“BBC CEMENT”, whereas the brand name of M\/s. Hira
\nIndustries Ltd. is “HIRA CEMENT”.  Merely, because
\nthe logo is similar in both the cases, it cannot be alleged
\nby the Revenue that the respondents are using the brand
\nname of another person for the purpose of attracting the
\nmischief of para 4 of the Notification.  In the present
\nmatter, the Revenue has not established that the brand
\nname used by M\/s. Hira Industries Ltd. is used by the
\nRespondents.  There is a substantial force in the
\nsubmissions of the learned Advocate for the respondents
\nthat the words ‘Hira Cement’ written on their bags of
\ncement is the name of their company and not the brand
\nname of M\/s. Hira Industries Ltd”\n<\/p>\n
 \tIt is not in dispute that the Appellant in its notice dated 20th\/22nd May,
\n1992 mentioned that a proceeding was initiated against the Respondent as
\nalso the said Hira Industries Limited as regard valuation of the goods
\nwherein ultimately by an order dated 21.9.2001, the Commissioner dropped
\nthe proceedings.  It is also not in dispute that in the appeal preferred by the
\nAppellant, herein before the Tribunal questioning the order dated
\n28.12.2001, the assessee objected to the maintainability of the appeal by
\nfiling a cross-objection before the Tribunal.  The Commissioner in its earlier
\norder dated 21.9.2001 opined:\n<\/p>\n
“d) On comparing the two bags submitted by the two
\nnoticees No. 1 and 2 which was submitted by them
\nduring the course of personal hearing on 3.9.2001, it is
\nclear that notice No. 1’s brand name ‘BBC’ was more
\nprominent on their bags whereas in case of bags of
\nnoticee No. 2 brand ‘HIRA’ with a logo of diamond on
\ntop is more prominent.  This fact may be further
\ncorroborated with samples and drawings of HDPE\/ Jute
\nbags submitted by noticee No. 1 to the Assistant
\nCollector Central Excise & Customs, Anupam Nagar
\nRaipur under their letter No. HC: 91-92 dtd. 4.2.92
\nenclosing the photocopies of the documents.  Hence
\nnoticee No. 1 M\/s. Hira Cement (firms name) have used
\nonly brand name ‘BBC’ on their products.  They have not
\nused Hira Cement as their brand name which is being
\nalleged in the show cause notice belongs to noticee No.\n<\/p>\n
2.  Noticee No. 2 sold their products with brand name
\n‘HIRA CEMENT’ with diamond logo\/ mark on the top.
\nBrand name of the both the firms are different.  These are
\nnot further substantiated during the course of
\ninvestigation and facts brought on the record.\n<\/p>\n
e) Thus, I hold that both the noticees were not using
\ncommon brand name on the packings of their product
\nwhich will disentitle the noticee No. (1) from benefit of
\nexemption under notification No. 175\/86 by merely
\nalleging that they have used the brand name of noticee
\nNo. 2.  Hence, I find that there is no justification in
\ndemand of duty of Rs. 326357.75 from noticee No. 1 for
\nthe period 21.6.91 to December, 91 by way of
\ndisallowing the benefit of exemption notification No.
\n175\/86 CE to noticee No. 1″\n<\/p>\n
 \tHowever, in the said proceedings, penalties of Rs. 50,000\/- and Rs.
\n25,000\/- were imposed against the Respondent and the said Hira Industries
\nLimited, respectively.\n<\/p>\n
 \tAn appeal thereagainst was preferred by the Respondent to the extent
\nof demand confirmed on the ground of alleged related person under Section
\n4 of the Act.  The said appeal was dismissed.  An appeal preferred
\nthereagainst by the Respondent before this Court was also dismissed.  The
\ncontention of the Respondent in the aforementioned situation is that the said
\norder dated 21.9.2001 attained finality and, thus, having been accepted by
\nthe Appellant, the present appeal was not maintainable.\n<\/p>\n
 \tMr. G.E. Vahanavati, learned Solicitor General appearing on behalf of
\nthe Appellant would, at the outset, draw our attention to the fact that the
\ndecision of the Tribunal in Emkay Investment (supra) has expressly been
\nreversed by a 3-Judge Bench of this Court in Commissioner of Central
\nExcise, Calcutta v. Emkay Investments (P) Ltd. and Another<\/a> [(2005) 1 SCC
\n526] stating:\n<\/p>\n
“15. We have gone through the common order passed by
\nthe Tribunal. In our view, the Tribunal has erred in not
\nappreciating that to attract provision of clause 7 of
\nNotification No. 175\/86-CE, it is sufficient that the
\nproduct contained a trade mark\/logo of another ineligible
\nperson which was fully satisfied in the instant case and
\nwhether the product also contained the brand name\/trade
\nname\/logo of the manufacturer would not and cannot
\nalter such position. Likewise, the interpretation of
\nExplanation VIII as advanced by the Tribunal does not
\nappear to be correct in law and in fact. It was imperative
\nthat by using the registered logo “MERINO” belonging
\nto M\/s Merinoply and Chemicals Ltd. on their own
\nproduct M\/s Emkay Investments Ltd. fulfilled the
\npurpose of indicating a relation between the said products
\nand the logo owner so as to influence the trade and
\ntherefore, the provisions of Explanation VIII were fully
\nsatisfied so far as the case on hand was concerned. The
\nfinding of the Tribunal to the contrary, in our opinion, is
\nwrong and liable to be set aside.”\n<\/p>\n
 \tIt was submitted that in that view of the matter the impugned
\njudgment of the Tribunal and the order of the Commissioner cannot be
\nsustained.  As regard the cross-objection filed by the Respondent, it was
\nurged that the order of the Commissioner dated 21.9.2001 having a limited
\neffect, the same will not debar the Appellant from maintaining an appeal.  In
\nany event, the law having been declared by this Court, the decision of the
\nCommissioner must give way to the decision of this Court.\n<\/p>\n
 \tMr. R. Santhanan, learned counsel appearing on behalf of the
\nRespondent, on the other hand, would submit that once the said order dated
\n21.9.2001 attained finality, the Appellant did not have any locus standi to
\nmaintain an appeal before the Tribunal and consequently this appeal.  It was
\nfurther contended that a finding of fact has been arrived at by the
\nCommissioner as also the Tribunal to the effect that it is not the assessee
\nwho had been using the brand name of the said Hira Industries Limited and
\nas if Hira Industries Limited was using the brand name of Hira Cement
\nbelonging to the Respondent herein, the assessee cannot be blamed therfor,
\nthe impugned judgments should not be interfered with.  Drawing our
\nattention to various distinctive features in the respective logos of the
\nRespondent as also the said Hira Industries Limited, the learned counsel
\nurged that the question must be adverted to keeping in view of the fact that
\nthe dispute does not relate to trade mark and in that view of the matter if the
\nsaid Hira Industries Limited had been using the premises belonging to the
\nRespondent as also the telephones which are installed therein or had been
\nselling cement from it, the same by itself cannot be a ground for holding that
\nthe Respondent had been using the brand name of the said Hira Industries
\nLimited.  It was submitted that in fact the said Hira Industries Limited had
\nbeen purchasing  cement from the Respondent.\n<\/p>\n
\tThe purport and object of grant of exemption to  a SSI unit is clear
\nand unambiguous.  It can be availed of, provided that they satisfy the
\nconditions precedent therefor.  The criteria for determining the eligibility of
\nan entrepreneur for becoming entitled to have the benefit of exemption
\nnotification, it is well-settled, must be construed strictly.  [See Tata Iron and
\nSteel Co. Ltd.  v. State of Jharkhand and Others,<\/a> (2005) 4 SCC 272 and
\nGovernment of India & Ors. v. Indian Tobacco Association,<\/a> 2005 (6)
\nSCALE 683].\n<\/p>\n
 \tIn Commissioner of C. Ex., Trichy v. Rukmani Pakkwell Traders<\/a>
\n[2004 (165) ELT 481 : (2004) 11 SCC 801], the expression “such brand
\nname” was considered holding:\n<\/p>\n
“7. The Tribunal had also held that under the Notification
\nthe use must be of “such brand name”. The Tribunal has
\nheld that the words “such brand name” shows that the
\nvery same brand name or trade name must be used. The
\nTribunal has held that if there are any differences then
\nthe exemption would not be lost. We are afraid that in
\ncoming to this conclusion the Tribunal has ignored
\nExplanation IX. Explanation IX makes it clear that the
\nbrand name or trade name shall mean a brand name or
\ntrade name (whether registered or not) that is to say a
\nname or a mark, code number, design number, drawing
\nnumber, symbol, monogram, label, signature or invented
\nword or writing. This makes it very clear that even a use
\nof part of a brand name or trade name, so long as it
\nindicates a connection in the course of trade would be
\nsufficient to disentitle the person from getting exemption
\nunder the Notification. In this case admittedly the brand
\nname or trade name is the words “ARR” with the
\nphotograph of the founder of the group. Merely because
\nthe registered trade mark is not entirely reproduced does
\nnot take the Respondents out of Clause 4 and make them
\neligible to the benefit of the Notification.”\n<\/p>\n
 \tIn Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies<\/a>
\n[2004 (166) ELT 23], the same view was reiterated.  The views expressed
\ntherein have also been reiterated in Commissioner of Central Excise,
\nCalcutta v. Emkay Investments (P) Ltd. and Another<\/a> (supra).\n<\/p>\n
The ratio of the decisions referred to hereinbefore shortly stated is that
\nif the manufacturer uses some brand of its own, it would be entitled to, but it
\nwould not be, for one reason or the other, it had been using the brand of
\nanother.   \tThe learned Commissioner or the learned Tribunal, as noticed
\nsupra, did not have the occasion to consider the question in the light of the
\naforementioned decisions of this Court.\n<\/p>\n
\tEmkay Investment (supra) which was the basis for the decision of the
\nCommissioner has expressly been overruled by this Court.  The cross-
\nobjections filed by the Respondent, herein before the Tribunal also had not
\nspecifically been adverted to as the matter relating to maintainability of the
\nappeal preferred by the Appellant, herein before the Tribunal does not
\nappear to have been discussed nor any reference thereto has been made in
\nthe concluding paragraph of the judgment.\n<\/p>\n
 \tBefore us, the parties have placed the entire facts.  We may also place
\non record that it has been conceded before us by the learned counsel
\nappearing on behalf of the Respondent that the earlier order dated 26.9.2001
\nshall not operate as a res-judicata but, as noticed hereinbefore, the only
\ncontention raised was that once the Revenue accepts a judgment, it cannot
\nraise the said question once again.\n<\/p>\n
 \tAlthough some decisions to this effect have been cited by Mr.
\nSanthanan, we are of the opinion that the matter should be considered afresh
\nby the Tribunal upon considering all aspects of the matter.  We refrain
\nourselves from going into the said question.  We may, however, notice that a
\nBench of this Court in Government of W.B. v. Tarun K. Roy and Others,<\/a>
\n[(2004) 1 SCC 347] stated:\n<\/p>\n
“Non-filing of an appeal, in any event, would not be a
\nground for refusing to consider a matter on its own
\nmerits. (See State of Maharashtra v. Digambar.)
\n In State of Bihar<\/a> v. Ramdeo Yadav wherein this
\nCourt noticed Debdas Kumar1 by holding:\n<\/p>\n
“4. Shri B.B. Singh, the learned counsel for the
\nappellants, contended that though an appeal
\nagainst the earlier order of the High Court has not
\nbeen filed, since larger public interest is involved
\nin the interpretation given by the High Court
\nfollowing its earlier judgment, the matter requires
\nconsideration by this Court. We find force in this
\ncontention. In the similar circumstances, this Court
\nin State of Maharashtra v. Digambar and<\/a> in State
\nof W.B. v. Debdas Kumar had held that though an
\nappeal was not filed against an earlier order, when
\npublic interest is involved in interpretation of law,
\nthe Court is entitled to go into the question.””\n<\/p>\n
 \tAs we intend to remit the matter back to the Tribunal, we should not
\nmake any observation at this juncture which would affect the merit of the
\nmatter one way or the other.  We  may also be misunderstood.  Suffice it to
\nsay that having regard to the definition of the brand name as contained in
\nExplanation IX to the notification dated 28.2.1993, the matter requires fresh
\nconsideration by the Tribunal upon taking into consideration the fact of the
\nmatter.  If, however, the Tribunal comes to the conclusion or is of the
\nopinion that further investigation in facts may be necessary, it may pass such
\norder or orders as it may think fit and proper.\n<\/p>\n
 \tThis appeal is allowed and the impugned judgment is set aside and the
\nmatter is remitted to the Tribunal for consideration of the matter afresh in the
\nlight of the observations made hereinbefore.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commnr. Of Central Excise, Raipur vs M\/S. Hira Cement on 2 February, 2006 Bench: S.B. Sinha, P.K. Balasubramanyan CASE NO.: Appeal (civil) 4424 of 2004 PETITIONER: Commnr. of Central Excise, Raipur RESPONDENT: M\/s. Hira Cement DATE OF JUDGMENT: 02\/02\/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-168205","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommnr. Of Central Excise, Raipur vs M\/S. 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