ORDER
1. These Writ Petitions may be dealt with together since they involve common issues for consideration and counsel appearing on either side also made submissions in common. These Writ Petitions have been filed for the following identical relief :-
'Writ of Certiorarified Mandamus calling for the records comprised in the impugned Notification No. 59/94-C.E., dated 1-3-1994 issued by the first respondent and quash the paragraph 4 of the said Notification dated 1-3-1994 and consequently directing the respondents to grant exemption to the petitioner under Notification No. 175/86-Central Excise as amended by Notification No. 1/93, dated 28-2-1993.'
2. The petitioner in W.P. No. 9869/94 claims to be a partner of the petitioner-firm carrying on business in the manufacture and sale of paper pins made of steel and brass falling under Chapter and Heading 7319.00 and 7415.29 respectively and paper clips made of steel falling under Chapter 8305.00 of the Schedule to the Central Excise Tariff Act, 1985, since 1952 onwards. The goods manufactured are said to be marketed under the brand name 'BELL' (with Emblem) duly registered with the Registrar of Trade Marks since 1959 (3-3-1959) in respect of pins and clips for paper which are meant for office use. The said items are said to fall under Class 16 of the IV Schedule to the Trade and Merchandise Marks Act, 1958. The Registeration Certificate is said to be periodically renewed till date, as a consequence of which the petitioner-firm is said to have become the exclusive owner of 'BELL' trade mark (with emblem) in respect of their goods pins and clips for paper only.
(b) It is further stated that the said business was started in the year 1952 by Mr. A. Chelladurai as a Proprietary concern and as the family grew, the sons of the proprietor were added as partners subsequently. It is also claimed that the petitioner-firm is a Small Scale Industry recognised by the Department of Industries and Commerce having a permanent Certificate bearing No. 18 : 14 : 00075 : PMT : SSI. Till 31-3-1994, it is stated that the petitioner-firm has been availing the exemption extended to the Small Scale Industries. As a consequence of which the petitioner-firm is not obliged to pay any excise duty upto a clearance of Rs. 30 lakhs by virtue of Notification No. 175/86 as amended by notification 1/93, dated 28-2-1993. Paragraph 4 of the Notification dated 28-2-1993 provided for denying the exemption where a manufacturer of goods affixes the specified goods with a brand name or trade name registered of another person who is not eligible for the grant of exemption under the notification. By virtue of the subsequent amendment by Notification No. 59/94-C.E., dated 1-3-1994, a new paragraph 4 was substituted in the place of the old paragraph 4 in the following terms :-
'The exemptions contained in this Notification shall not apply to the specified goods bearing a 'brand name or trade name (registered or not) of another person.'
It is claimed that the third respondent in this Writ Petition called upon the petitioner to pay excise duty in view of the Notification No. 1/93 as amended since brand name 'BELL' refers to a group of people. It is stated that registered trade mark certificate stands in the name of the petitioner-firm represented by one of its partner A. Chelladurai, founder of the business and it cannot therefore, be stated that the petitioner has been using the brand name 'BELL' which belong to a group of people.
3. W.P. No. 9870 of 1994 was filed by the petitioner therein, carrying on business in the manufacture and sale of 'Staples' made of steel falling under Chapter and Heading 8305.00 of the Schedule to the Central Excise Tariff Act, 1985 since 1972, and marketing the goods under the brand name 'BELL' (only by letters, without emblem) since 1972. It is stated that this brand name was not registered by the petitioner. The petitioner appears to commence business in the year 1972 as a partnership firm with its own funds, machinery and other required infrastructure and engaged in the said business from the said time onwards. The petitioner firm was said to have been using the brand name in question, continuously without interruption or dispute from any other manufacturer and therefore acquired proprietory right to use of their goods the brand name 'BELL' (by letters) to the exclusion of others by virtue of long and continuous as well as uninterrupted use. In this case, also, the third respondent has directed the petitioner-firm to pay the Excise Duty in terms of the amendment issued to the Notification No. 1/93 on the ground that the petitioner is using the brand name 'BELL' belonging to the other persons. Apart from reiterating the stand taken in the other writ petition, it is also contended that the goods manufactured by the petitioner are Staples and are totally different from the goods manufactured by the petitioner in the other writ petition namely, paper pins and clips and the brand or trade name used by the petitioner in W.P. No. 9869 of 1994 cannot be said to have been used by the petitioner herein. In other respects, similar contention as laid down in the other writ petition, are reiterated.
4. Writ Petition No. 9871 of 1994 has been filed by the petitioner therein carrying on business the manufacture and sale of safety pins made of steel falling under Chapter and Heading 7319.00 of the Schedule to the Central Excise Tariff Act, 1985 since 1952. The manufactured goods are said to be marketed under brand name 'BELL' (only letters with no emblem) since 1960 and the said mark or name has not been registered. The firm in question was said to have been started in the year 1960 with its own machinery and investment and other infrastructures. As in the other cases, it is stated that after the amendment issued by Notification No. 59/94, the third respondent in the Writ Petition has directed the petitioner to pay excise duty since the petitioner is using the brand name 'BELL' belonging to other persons. It is stated that the present partnership consists of partners M/s. Subasingh, C. Vijayasingh, Mrs. Ronits and Mrs. R. Beema. It is also stated that M/s. Bell Products Company, the petitioner in W.P. No. 9869/94 is an independent entity engaged in the manufacture of paper pins and clips and marketing their products with the brand name 'BELL' with an emblem, but the petitioner-firm is engaged in the manufacture of safety pins which is totally different and distinctive product and marketing the same under the brand name 'BELL' (with no emblem, but by letters only). It is also stated that for visual appearance the brand name 'BELL' is totally different and not registered though the petitioner-firm has been using the same since 1960 without any dispute or interruption and therefore, they have acquired the proprietary right to use the petitioner's goods and the petitioner-firm is the absolute owner of the brand name 'BELL' (letters) to the exclusion of others by virtue of long and continuous as also uninterrupted use. In all other respects the identical contentions raised in respect of the other Writ Petitioners are reiterated in the affidavit in their writ petitions also.
5. The respondents have filed a common counter Affidavit. It is stated that in the said counter Affidavit that the three units namely, The Bell Products Company, Bell Pins Manufacturing Company and Lilly Pins Manufacturing are located at the Bell Industrial Complex, Tirunelveli and in the market, the Bell Products as such represents Bell Group in which the Individual units are being managed by separate members of the family, though for legal sense they are having separate identity. The Bell Products Company are said to be manufacturing paper pins of base metals (steel) 7319.00, paper pins of base Metals (Brass) 7415.29, Paper clips of Base Metals (Steel) 8305 and using the brand name 'BELL' emblem and the word 'BELL' prominently displaying the pacing of their goods as 'BELL Pins' or 'BELL Clips' as the case may be. The 'Bell' emblem alone is registered in the name of one Sri Chelladurai, one of the partners of the petitioner-firm and the word 'BELL' is not registered by the unit. The word 'BELL' is said to be used by the Bell Pins Manufacturing Company and M/s. Lilly Pins Manufacturing Company also for their products namely, staples in straps falling under 8305.00 and steel safety pins falling under 7319.00 respectively. All these units are said to be marketing their products Bell Pins and Bell safety pins. Though they are not using the emblem 'BELL', it is also stated that as per the Notification No. 59/94 amending Notification 1/93, the exemption is not available to the petitioners for the reasons that they are using the brand name of other persons. It is also stated that since the word 'BELL' is used by all the three other units, it amounts to use of brand name or trade name of another person. The use of the common brand name 'BELL' by letters for the goods manufactured by them is said to be a disentitling factor to claim the exemption in question. The respondents further states that as the modification effected by Notification 59/94 was in public interest, to prevent the fragmentations of big units in order to get benefit of Small Scale Industries exemption, resulting in deprivation of the legitimate growth of the Small Scale Industries in genuine cases. It is also stated that the scheme to benefit the Small Scale Industries, has been duly modified in order to fetch more revenue to the State and being a matter of policy, it is within the exclusive discretion of the legislature or the Government to specify in which case the exemption is available and in which category of case the exemption is not available. While denying the claim of the petitioner that there has been violation of any fundamental rights of the petitioner, it is stated that the provisions contained in paragraph 4 of the Notification in question is quite in accordance with law and do not suffer the vice of discrimination or arbitration.
6. Learned Counsel appearing for the petitioners contended that for granting exemption emphasis is laid on the ownership of the trade mark and not on the use thereof and inasmuch as in each one of the cases they manufacture their own goods marketed by them and they are the respective proprietors of the trade mark used by them having acquired a right to use the same in their own capacity by virtue of their long and uninterrupted use of the said mark or name, the petitioners could not be said to be using the trade mark of others. That apart, it has also been contended that the trade name 'BELL' used by each one of them are with reference to distinct and different commodities having no similarity in the goods they manufacture and market and therefore, the petitioners cannot be said to be hit by the amended paragraph 4 inserted by Notification 59/94. It is also contended that the fixing of the labels is merely a marketing strategy and has nothing to do with process of manufacture and therefore, user of the brand names in question, cannot be a ground for denying exemption due to them under main Notification. In other respects the issues raised in W.P. Nos. 8825 to 8832 of 1994 [reported in 1995 (76) E.L.T. 265 (Mad.)] have been reiterated. So far as the learned counsel for the respondents is concerned while reiterating the stand taken in the counter affidavit, the submissions made on behalf of the respondent-department in W.P. No. 8825 to 8832 of 1994 have also been reiterated. Learned Counsel for the petitioner relied upon the decision reported in 1978 (2) E.L.T. (J 18) [E.I.D. Parry Ltd. v. Union of India]; : 1992(60)ELT3(SC) [Union of India v. Century .] in support of his claim.
7. Learned counsel for the respondents relied upon the decisions reported in 1986 (24) E.L.T. 492 : : 1986(24)ELT492(Mad) [Union of India & Others v. Aruna Sugars Ltd. & Others]; 1988 (35) E.L.T. 290 : : 1988(35)ELT290(Mad) - [Match House v. Supdt. of C. Excise] and 1994 (60) ELT 172 [Nectar Beverages Pvt. Ltd. v. Union of India] in support of his stand.
8. The decision in 1978 ELT (J 18) is that of a learned Single Judge of this Court holding that putting marks or labels on the containers with the object of identifying the end-product and enhancing the goodwill of the product would not form part of the manufacture. We are not concerned in this case with the fixing of liability of the petitioners with reference to their manufacture of goods. There is no dispute that the petitioners are manufacturing and marketing the products with a brand name or trade name affixed thereon. The question is whether the user of the particular brand name for their respective products disentitled the benefit of exemption granted to them by Notification in 175/86 as amended by Notification 1/93 and whether they rendered themselves ineligible for exemption by virtue of paragraph 4 of the Notification No. 59/94 by virtue of such user of brand or trade name which could be said to belong to other persons. To the issue under consideration, the decision relied upon above, has no relevance. Likewise the decision in 1992 (3) SCC 418 : : 1992(60)ELT3(SC) which relates to fixation of ad valorem rate also has no relevance to the nature of the issue involved in these cases. So far as the decision in 1992 (73) ELT 19, is concerned, this and the other decision in 1994 (70) ELT 173 have been considered by me in a judgment delivered separately, on 16-12-1994 and it is unnecessary for me to once again to advert to those decisions in great detail. As a matter of fact, these batch of writ petitions were heard together and in view of the additional issues raised in these three writ petitions, they were segregated and heard further on such additional points separately.
9. In the decisions reported in 1988 (35) E.L.T. 290 (Mad.) : : 1988(35)ELT290(Mad) (Match House v. Superintendent of Central Excise & Another), a learned single Judge of this Court has held that merely because the exemption notification referred to processes of manufacture like box making, labelling and handrolling and packaging as being relevant for the purpose of claiming exemption. It cannot be struck down on the ground that such different process per se do not amount to manufacturing process. It was also held therein that the Government has been conferred under Rule 8(1) of the rules wide discretionary powers in the matter of granting exemption. In the decision reported in 1994 (70) E.L.T. 172 : : 1994(70)ELT172(Kar) = 1994 (45) ECC 107 (Nectar Beverages Private Ltd. v. Union of India and Others), a learned single Judge of the Karnataka High Court has held that the provisions of the nature under question providing for denying the exemption to a unit affixing the brand name of another unit not entitled to exemption and thereby making the status of the manufacturer as a condition of eligibility for this ground of exemption cannot be said to either ultra vires the powers of the Government or Article 14 of the Constitution of India. In the decision reported in 1986 (24) E.L.T. 492 (Mad.) : : 1986(24)ELT492(Mad) (Union of India and Others v. Aruna Sugars Ltd. and Others), a Division Bench of this Court has held that in construing an expression in an exemption notification which is used in plain and meaningful language, there is no scope for assuming an ambiguity and trying to interpret it in a supposed intention of the makers of the Notification.
10. On a careful consideration of the submission of the learned counsel appearing on either side, I am of the view that the main issues raised in these writ petitions also are squarely covered by the decision dated 16-12-1994 separately delivered today in W.P. Nos. 8825 to 8832 of 1994 [reported in 1995 (76) E.L.T. 265 (Mad.) : : 1995(76)ELT265(Mad) ] whereunder it has been held that the provisions contained in paragraph 4 of Notification No. 59/94 is constitutionally valid and enforceable. In view of the above, the challenge made to the constitutionally validity and the legality of paragraph 4 of the Notification No. 59/94 is liable to be rejected applying the ratio of the decision in W.P. Nos. 8825 to 8832 of 1994. The further issue raised for consideration in these cases is that the petitioners in these cases cannot be said to be using the brand or trade name of some other person since they have themselves acquired a right to use the name 'BELL' apart from the fact that there is no identity of use in respect of similar or identical goods.
11. The fact that the three units which have filed the above Writ Petitions are located at BELL Industrial Complex at Tirunelveli and though different members constituted the three firms as partners not only they are all members belonging to the same family, but more than one of such members of the family members holds interest in all these three firms are not in serious contravinity. As a matter of fact, in using the common brand name, sometimes it is used with by inscribing the letters and sometimes with the mark of the 'BELL'. This variation in the pattern of using the brand name would not in any manner, alter the position that the units have been using the trade or brand name of another person, viz. Mr. A. Chelladurai, one of the partners of the BELL Products Company. Brand name or trade name may be of a name or mark used either as a symbol or monogram or mere writing. Though the individual units of the BELL group as such are being managed by different members of the family to create in the eye of law a separate legal identity, the fact that in the market, these products are pushed through as 'BELL' products as claimed by the department cannot be said to be incorrect or rejected as of no significance or relevance. Though the exemption of the nature in question has been initially envisaged for being granted on the basis of a particular unit constituting a small scale industrial unit as recognised by the Director of Industries and Commerce with the passage of time and with experience gained in its implementation, by periodical amendments, the basis of the grant had undergone a conspicuous change and with the amendments introduced by Notification 1/93 and the subsequent amendments thereto, the eligibility to claim exemption or concessional rates of duty has been made to depend upon the basis of aggregate value of clearance and in order to ensure that there is no abuse by the manufacturer who is otherwise not eligible to claim such exemption enjoying the same by creating or floating different units or by fragmentation of a single unit, the provision for denying the exemption was introduced when the product of a unit or a manufacturer of such product uses a common brand name or for that matter the brand or trade name or mark of another whether registered or not.
12. While that be the position, can the petitioners be held to be entitled to the exemption merely because the products of the units are different not-withstanding the common or identical brand name used for the products. For the purposes of excise duty and application of the rates, it is the totality of the clearances that have to be taken into account and not the clearances in respect of different products when exemption is sought to be claimed under the notifications in question. The notification, apart from stipulating the mere user of the brand or trade name of another person, does not carry any further limitation on the said user that it should be in respect of similar or identical goods also. The various explanations to paragraph 4 of the Notification in question would go to show that the total value of clearance have to be taken into account in adjudicating upon the eligibility or otherwise of the claim for exemption. In view of the above, I am of the view that the claims of the petitioners have to fail and consequently these writ petitions shall stand dismissed. No costs.