Full Judgment
2. It is not disputed that the trailers which were manufactured by these seven appellants bear the name "Super Trailers" in Devnagari. It is however contended that this is not a brand name, for the reason that it describes the quality of the trailers. We find it difficult to accept this contention. We do not see why because a name has description of quality it may not be a brand name. Further the departmental representative points out the word 'Super' is not to be found in any of the language in which the Devnagari script is used, Marathi, Gujarathi, Hindi, etc. and therefore in these languages it is not a adjective. We have however not gone beyond a superficial examination of this aspect, for the reason that we are of the view that the appeal can be disposed of on the other alternative argument raised by the appellant.
3. That argument is that it has not been shown that this brand name belonged to M/s. Dhawal Sales Corporation, who, not being a manufacturer, was not entitled to the benefit of the either of the notifications. Therefore there cannot be any lawful denial of the benefit of the notifications to the other appellants. Paragraph 7 of the 175/86 and paragraph 4 of notification 1/93, before it was amended on 1-4-1994, both provided that the exemption contained in the notification shall not apply to goods where a manufacture affixes a 'brand name or trade name (registered or not) of any person who is not eligible for the grant of exemption under this notification'. It thus follows that affixing a brand name belonging to a person who is entitled to the notification would not result in denial of the benefit of exemption to the goods. It is the appellant's contention that the brand name belonged not to Dhawal Sales Corporation but to M/s. Veena Engineering Works, which was entitled to the grant of exemption. The basis for this contention is that Dhawal Sales Corporation came into existence only in 14th February, 1981. It commenced to function as a proprietary concern of Veena S. Dhawale. Veena Engineering Works was constituted as a partnership of Veena S. Dhawale and others from first September, 1980 and continued till it was dissolved in November, 1992.
Between the inception of the partnership and the coming into existence of a proprietary firm, Veena Engineering Works manufactured trailers bearing the name in question The name therefore belong to Veena Engineering Works. In the absence of anything to show that the partnership which came into existence prior to Dhawal Sales Corporation the benefit of notification could not be denied.
4. The Commissioner accepts the correctness of this contention. He says "On going through the sales invoices of December, 1980 and January, 1981 it is indeed clear that Noticee 2 did sell 'Super Trailers'. I notice that these invoices were printed with information such as Manufactures Super Trailer and Implements. Invoices also describe the goods as called 'Super Trailer' ". (Noticee 2 is Veena Engineering Works.) He however goes on to say that during the period for which demand was raised Veena Engineering Works did not issue any invoices showing sale of 'Super Trailers'. It is not in dispute that during this period, the invoices of the manufacturer did not bear these words. It is the department's case that these trailers bearing this name was sold by these manufactures only to Dhawal Sales Corporation which in turn sold the goods to other persons, issuing invoices described the goods as 'super trailers'. The contention of the advocate for the appellant that in addition, goods were directly sold by each of the manufacturers to customers bearing the name but without invoice showing that name is not substantiated by any evidence. It is on this basis that the Commissioner says that during the relevant period the name belongs to Dhawal Sales Corporation and not to Veena Engineering Works.
5. From the facts as narrated above, it is difficult to resist the conclusion that there was an arrangement between the manufacturers and Dhawal Sales Corporation whereby the trailers bearing the name in question were sold by each of them only to Dhawal Sales Corporation which in turn marketed them, issuing invoices bearing the name.
However, this arrangement in our view by no mean establishes that the name at the relevant time belongs to Dhawal Sales Corporation. We have to make a distinction between the permission to use a brand name of one person by another person and the transfer or assignment of such a brand name. There is no evidence to show that there was no such transfer (assuming it to be a brand name) to Dhawal Sales Corporation. Therefore the name during the relevant period continue to belong to Veena Engineering Works.
6. The Tribunal in its decision in Opus India v. CCE, 1992 (62) E.L.T.447 has interpreted the word 'of in the relevant paragraph of the notification (relevant part of paragraph 7 of notification 175/86 and paragraph 4 of notification 1/93) which were reproduced above as meaning 'belong to' after consulting Strout's Judicial Dictionary. The Tribunal in its decision has also cited the Board's circular reported in 1989 (41) E.L.T. T3 in which it clarified that term 'of means 'owned by' from the example reproduced. The require-ment for denying benefit of the notification to these manufacturers that the brand name belongs to Dhawal Sales Corporation has not been satisfied. The demand for duty and imposition of penalty therefore cannot be upheld.7. In the light of this finding we have not considered it necessary to take on record the additional evidence which was sought to be introduced by the appellants by means of an application.