Full Judgment
2. Shri S.D. Gaur, learned Consultant, mentioned that the Appellants manufacture Ice-cream makers cooler and Popcorn makers and avail of the benefit of SSI Exemption Notification; that they sell Ice-cream maker in their own brand name "CREMICA" and sell the same to different customers including United Tele Shopping (UTS) and Tele Shopping Network (TSN); that in respect of sale to UTS & TSN the goods were being examined by the Supervisor of these customers before dispatch from their factory and stickers bearing UTS/TSN were being affixed; that these stickers bear the words "Checked Srl. No. Do not remove this sticker"; that the Department has treated the words UTS and TSN as brand name belonging to others and has disallowed the benefit of small scale exemption notification. The learned Consultant submitted that the word UTS and TSN are not brand name but are the abbreviations of the name of the marketing companies which does not amount to use of brand name; that the Tribunal in the case of CCE, Mumbai v. ARK Laboratories - 2005 (180) E.L.T. 164 (T) has held that name and logo of marketing company printed on packing does not lead to identification of product with the marketing company. He also relied upon the decision in the case of CCE, Mumbai v. Aarem Enterprises and Anr. - [2003 (153) E.L.T.111 (Tri.) = 2003 (54) RLT 356 (CEGAT-Mum.)] wherein also marketing firm after inspection was affixing stickers which bear their logo UTS/TSN and the Tribunal has allowed the benefit of SSI Notification holding that the use of this sticker would not involve use of brand name. Finally he submitted that no penalty is imposable on either of the Appellants as the issue involved is the interpretation of the notification.
3. Countering the arguments Shri Vikas Kumar, learned SDR, submitted that the fact has not been controverted by the Appellants that the excisable goods before clearance from their factory premises bear stickers of UTS/TSN; that as per definition of the brand name given in SSI Exemption Notification, brand name means any name, symbol, monogram, label, signatures or invented word or writing which indicates connection in the course of trade between excisable goods and some person using such name; that the words UTS/TSN mentioned on the packaging of the products indicate the connection in the course of trade with UTS and TSN; that the Supreme Court in the case of CCE, Chandigarh v. Mahaan Dairies - 2004 (166) E.L.T. 23 (S.C.) has held that mere use of additional word along with brand name of another person would not enable the assessee to claim the benefit of exemption notification. Reliance has also been placed on the judgment in CCE, Trichi v. Rukmani Pakkwell Traders - 2004 (165) E.L.T. 481 (S.C.) wherein it has been held that "even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the notification." Finally the learned SDR mentioned that the sample brought by the Appellants clearly shows that the words "Checked, Sri. No., Do not remove this sticker" do not appear on the sticker, as such the benefit of SSI Notification is not available to the Appellants.
4. We have considered the submissions of both the sides. The SSI Exemption Notification which provides exemption to the excisable goods manufactured by a SSI unit provides that the exemption shall not apply to goods bearing the brand name or trade name, whether registered or not, of another person. Explanation to Notification defines the brand name as a name or mark, such as symbol, monogram, label, signatures or invented word or writing which is used in relation to the specified goods for the purpose of indicating a connection in the course of a trade between specified goods and some person using such name or mark with or without any indication of the identity of that person.
5.1 A perusal of the sample shown by the learned Consultant at the time of hearing revealed that the sticker nowhere mentions that it has been put after checking the quality of the product manufactured by the Appellants. In fact the sticker reads as under :- 5.2 Sticker also nowhere mentions that the product is being marketed by TSN/UTS. In fact it is apparent from the sticker that these goods have been specially packed for TSN/UTS. The use of Words TSN/UTS clearly indicates a connection in the course of trade between the goods manufactured by the Appellants and TSN/UTS. Thus the use of these words on the packaging of their product clearly falls within the definition of brand name as given in the SSI Notification. In the case of Rukmani Pakkwell Traders though the trade mark was not entirely reproduced, the Supreme Court has held that "merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." The decisions relied upon by the learned Consultant are not applicable as the facts are different. In the case of Aarem Enterprises the word "Checked" was clearly mentioned on the sticker which was affixed to show that the goods comes up to quality specification. In view of this the Tribunal has held that the use of the said sticker would not involve the use of brand name. In ARK Laboratories, the Tribunal has allowed the benefit of SSI Notification as it observed that it was printed that the product is marketed by Jenburkt whose logo was printed on the cartons and further the Tribunal also found that the manner in which the printing was made on the carton would not in any way show that the product was being identified under the brand name Jenburkt. In the present matter there is nowhere mentioned that the product is being marketed by TSN/UTS. On the other hand these stickers besides containing the logo of TSN/UTS also carries their moto "Quality at your doorstep". We are, therefore, of the view that the appellants are using the brand name of another person which makes them ineligible for the SSI exemption notification. Accordingly we uphold the demand of duty and penalty imposed on the Appellant company. There is no force in the submissions of the learned Advocate that the penalty is not imposable as they have not paid the appropriate duty at the time of removal of the goods. We also observe that the amount of penalty is only Rs. 35,000/- in a case involving duty more than Rs. 6.70 lakhs which is reasonable. However, we find no reason to impose a separate penalty on second Appellant, Director of the company. We set aside the penalty imposed on Shri Premjeet Singh. Both the appeals are disposed of in the above terms.