1. The issue involved in this appeal, filed by the Revenue, is whether the respondents, M/s. Hira Cement, were clearing their goods bearing the brand name of another unit, namely, Hira Industries Ltd. 2. Sh. V. Valte, learned S.D.R., submitted that M/s. Hira Cement, manufacture cement and claim the benefit of SSI Exemption; that number of show cause notices were issued to them for disallowing the SSI Exemption and for recovering the Central Excise duty on the ground that they were clearing cement by using the brand name/trade name with the style and other accompanying designs of M/s. Hira Industries Ltd., who are also manufacturers of cement; that the Commissioner, under the impugned order, has dropped the further proceedings against respondents holding that the respondents were not using common brand name on the packing of their product. The learned S.D.R., further, submitted that the style and logo, being used by the respondents consisting of a semi-circle with a diamond which is displayed prominently on their bags, is exactly the same as the logo used by M/s. Hira Industries Ltd.; that the said logo of appellants, M/s. Hira Industries Ltd. had also been registered by them under the Trade and Merchandise Marks Act, 1958; that, therefore, the benefit of SSI Exemption is not available as the cement manufactured by the respondents is clearly bearing the brand name and trade name of another person; that, moreover, the styling of the bags and the inscription thereon is exactly similar to the bags in which cement is marketed by M/s. Hira Industries Ltd.; that the style and manner of writing of maximum retail price, the position and size of ISI logo, colour scheme, etc. are exactly similar in both the cases; that the address of the registered office and telephone numbers of the respondents is the same as that of M/s. Hira Industries Ltd. The majority of the sales of the respondents are being effected by them to the independent buyers through the depots of M/s. Hira Industries Ltd.; that, thus, any buyer, coming to the depot of M/s. Hira Industries Ltd., would establish connection between the bags of the respondents and Hira Industries Ltd; that M/s. Hira Cement and Hira Industries Ltd. are related persons as was admitted by them before the Tribunal in appeal Nos. E/489 & 528/94-A arising out of an earlier Order-in-Original No. 55, dated 16-12-93 by the C.C.E., Raipur and as recorded by the Tribunal in its Final Order Nos. 1077-78/99, dated 5-8-99 reported in 2000 (116) E.L.T. 580 (T); that the distinction between M/s. Hira Cement and Hira Industries Ltd. has been created superficially to avail the benefit of SSI Exemption as the clearance from M/s. Hira industries Ltd. has crossed the exemption limit. He also relied upon the following decisions:Super Star Welding Ind. Ltd. v. C.C.E., Ahmedabad, 1994 (71) E.L.T. 443 (T);Chopra Appliances v. C.C.E., Delhi, 3. On the other hand, Shri R. Santhanam, learned Advocate, submitted that the brand name used by the respondents on their bags of cement is "BBC Cement" whereas the brand of M/s. Hira Industries Ltd. is HIRA CEMENT; that the respondents, after putting the brand name on the bags, are printing the name of their firm 'Hira Cement Factory, 572, Urla Industrial Area, Urla, Raipur -493 221 (M.P.)'; that mentioning the name of the assessee on the bag cannot be regarded as using the brand name of another company; that for the purpose of attracting the mischief of para 4 of Notification No. 1/93 or its successor Notifications, the brand name should be completely similar. He relied upon the decision in the case of C.C.E., Hyderabad v. Resource Communication Pvt. Ltd., 2003 (157) E.L.T. 490 (T) = 2003 (55) RLT 441 (CEGAT), wherein the Tribunal allowed the benefit of SSI Exemption to the respondents as the logo used by the respondents was different from the logo of another company M/s. RTPL. Reliance has also been placed on the decision in the case of C.C.E., Chandigarh v. Speedway Rubber Factory, 2003 (154) E.L.T. 207 (T). The learned Advocate also submitted that once it has been held by the Tribunal that M/s. Hira Cement and M/s. Hira Industries Ltd. are related persons, it cannot be claimed by the Revenue that the units had been bifurcated to avail the benefit of SSI Notification.
4. We have considered the submissions of both the sides. The benefit of SSI Exemption is not applicable if any manufacturer manufactures the goods bearing the brand name (registered or unregistered) of any other person. We observe from the Memorandum of Appeal that the brand name used by both, the respondents and M/s. Hira Industries Ltd., are as under : Factory : 572, Urla Industries, Urla, Raipur-493221(M.P.) Phone : (0771) 323129 FAX : 325522 TELEX: 0776, 207 Jcc - GRAM: HIRA CEMENT Regd. Office : 572, Urla Industrial Area, Urla Raipur - 493221 (M.P.) 5. A perusal of the logo and brand name used by the respondents clearly reveals that their brand name is "BBC CEMENT", whereas the brand name of M/s. Hira Industries Ltd. is "HIRA CEMENT". Merely, because the logo is similar in both the cases, it cannot be alleged by the Revenue that the respondents are using the brand name of another person for the purpose of attracting the mischief of para 4 of the Notification. In the present matter, the Revenue has not established that the brand name used by M/s. Hira Industries Ltd. is used by the Respondents. There is a substantial force in the submissions of the learned Advocate for the respondents that the words 'Hira Cement' written on their bags of cement is the name of their company and not the brand name of M/s. Hira Industries Ltd. It has also been held by the Tribunal in the case of C.C.E., Chandigarh v. M/s. Speedway Rubber Factory, 2003 (154) E.L.T.207 (T) that the brand name "Speedway Rubber Factory" and brand name "Speedways" are two different brand names and the Tribunal allowed the benefit of SSI Exemption Notification. In the present matter also, as the brand name, used by the respondents, is different from the brand name used by M/s. Hira Industries Ltd., they are eligible to avail the benefit of SSI Exemption Notification. We also do not find any force in the submissions of the learned S.D.R. that the distinction between Hira Industries Ltd. and Hira Cement has been created superficially to avail the benefit of SSI Notification, particularly in view of the fact that the Tribunal has held that both are related persons in Final Order No.566/02-A, dated 13-11-2002. The character of related person can be established only when both the persons are in existence and the concept of related person will not apply if one unit is the dummy unit of another. Once it is held that both, Hira Cement and Hira Industries Ltd. are related persons, the separate existence of both the units is established. Further, it is mentioned in the Memorandum of Appeal filed by the Revenue itself that no evidence has been cited in the show cause notice in this regard. Accordingly, we reject the appeal filed by the Revenue.