1. This appeal has been filed by the department against the findings of the learned lower authority that the appellants had not used the brand name of their customer viz. M/s Maruti Udyog Limited. The learned lower authority has held that the brand name as used by the appellants did not correspond to the brand name which is used by M/s Maruti Udyog Limited on their vehicles inasmuch as the words Maruti in devanagari script is missing.
2. The respondents are absent despite notice and no one is present on their behalf. They have sent a communication which was received in the Registry on 22.7.1997, seeking adjournment stating that the partner of the appellants was sick and under Ayurvedic treatment. We observe that the matter has been adjourned earlier on two occasions at the request of the appellants on the same ground. It was expected that they would make alternate arrangements for representation. We are of the view that no further indulgence by way of adjournment could be shown. We decline their request for adjournment and take up the appeal for disposal on merits today.
3. The learned JDR for the department has pleaded that the insignia of M/s Maruti with the words Maruti at the bottom had been used by the appellants on their Hub Cap and Show Cap manufactured by them for their own brand name COX affixed above the insignia of Maruti. He has pleaded that by use of the insignia of Maruti and the word Maruti written in English, there is a clear nexus created with M/s Maruti Udyog and there is the name of Maruti also there. He has pleaded, the absence of the word Maruti in devanagari script does not mean that the logo of Maruti has not been affixed on the goods. He has pleaded that by use of the logo of Maruti as used, the appellants would get the advantage of the market acceptance of the brand of Maruti. He has urged that the Hon'ble Supreme Court has clearly held in the case of Union of India v. Paliwal Electricals Ltd. the brand name of another, the product acquires a premium in the market and, therefore, the Hon'ble Supreme Court upheld the constitutional validity of the provision in the notification, whereby the benefit of notification was denied in respect of that category of goods which carried the brand name of another person. He has pleaded, in that view of the matter the learned lower authority's order is not sustainable in law.
4. We have considered the pleas made by the learned JDR and also we have perused the reasoning of the order of the learned lower authority.
We observe, the learned lower authority has held that inasmuch as the word Maruti in devanagari script was missing, the logo of Maruti as affixed could not be taken to constitute the use of the brand name of M/s Maruti Udyog. We observe that the term 'brand name' for the purpose of notification as defined in Notification 175/86 in Explanation VIII is as under: 'Brand 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 persons.
5. It is seen, therefore, for any goods to come within the mischief of para 7 of the notification, all that is required to be shown by the revenue is that there is a use of the brand name of another person as set out in the Explanation VIII of the notification. The wording used in this Explanation VIII, in our view are wide enough to cover the manner in which the logo of M/s Maruti have been used on the appellants goods. It does create a nexus of the goods with M/s Maruti and a customer would be in no doubt as to the nature of the brand used and it will create an impression in his mind that the product is that of Maruti. The brand name as used may be registered or not and all that has to be shown by the revenue is that by the reason of the use of the mark or monogram and invented word, there is a relationship of the goods with the brand of the other person. In our view the goods show a connection in the course of trade between the goods in question and M/s Maruti. The learned lower authority may be right that the registered brand name of M/s Maruti carries also the word Maruti in devanagari script. But that is not to say that in the absence of these words in the devanagari script, the logo with the name of Maruti in English would be any the less a brand name of Maruti.
6. In view of the above, we hold that the learned lower authority was in error in not invoking the provisions of Para 7 in respect of the items in question. We, therefore, allow the appeal of the revenue by setting aside the order of the Ld. lower authority in this regard.