Shri Bajrang Ispat and Plywood Vs. Commr. of C. Ex. - Court Judgment

Excerpt:
1. the appellants are challenging the denial of benefit of ssi exemption in terms of notification no. 16/97-c.e., dated 1-4-1997 up to 1-6-1998 and thereafter under notification no. 8/98-c.e., dated 2-6-1998 on the ground that they have used the 'logo' and 'brand name' of another unit viz. m/s. shri bajrang alloys ltd. the contention of the appellant is that the raipur unit has not used the brand name or logo on the goods but was only affixed on the invoice. their further contention is that they are the persons who have used the brand name themselves and it is not owned by any other unit and hence, they cannot be denied the benefit of the ssi exemption.2. we have heard both sides in the matter. we find from the impugned order itself that the other unit viz. m/s. shri bajrang alloys ltd., raipur was not affixing the brand name or logo on the goods but were mentioning only on the invoice. the apex court, in the case of cce, jamshedpur v. superex industries - 2004 (174) e.l.t. 4 (s.c.), has held that when the brand name of 'others' not affixed on the goods but such brand name is indicated on the invoice that by itself is no ground to deny the benefit of the ssi exemption. further, the appellants have claimed to be the sole users of the brand name 'goel' and the logo. the other unit has never claimed the brand name or the logo. the revenue has not proved that the logo in question or the words 'goel' or 'bajrang' are owned by the raipur company. the raipur company has not affixed this brand name on their goods and, therefore, the contention that the revenue has not proved the use of logo by m/s. raipur company is sustainable and requires to be upheld in the light of the following two judgments.mukur pharmaceuticals co. p. ltd. v. cce, chandigarh - 2001 (135) e.l.t. 569 (tri.-del.) both these rulings clearly lay down that the department has to prove that the brand name belongs to another person. the same has not been discharged. furthermore, the appellants have shown through the records that the brand name is registered in their name and they are the owners thereof. they have filed the search report obtained from the database of the trade marks registry and the trade marks registry have recognized the trade marks as belonging to the appellants. therefore, in the light of the cce, hyderabad v. natco pharma ltd. case, this plea is required to be accepted. the apex court, in the case of cce, chandigarh v. bhalla enterprises - 2004 (173) e.l.t. 225 (s.c.), has held that the assessee would be equally entitled to the benefit, if they demonstrate the ownership of the brand name. as the appellants have established the same, the benefit is required to be granted. we have further noted that revenue has not established that the appellant and m/s. shri bajrang alloys ltd., raipur are related persons. even if they are related, the matter is not material in so far as the availment of ssi exemption is concerned and the alleged relationship would not come in the way of claiming exemption as long as the conditions prescribed in the notification are satisfied. in this regard, the tribunal ruling rendered in the case of kiran biscuits & foods ltd. v. cce, hyderabad - 2005 (179) e.l.t. 566 (tri-bang.) clearly applies to the facts of the case.cce, trichy v. grasim industries ltd. - . the facts of this case are clearly distinguishable as the assessee has not used the brand name of another person, as was the case in grasim industries.4. we also find that the plea raised by the assessee pertaining to the demands being hit by time-bar is also a well taken ground as they had filed the classification list and in which they had clearly mentioned that they would be availing the benefit of ssi exemption under the relevant notification. they had filed price declarations and all other details. they had not used the brand name of another person and the revenue has not proved their case that they have used the brand name of another person. therefore, the impugned order, denying the benefit of ssi exemption is required to be set aside. the appeal is allowed with consequential relief, if any.(operative portion of this order was pronounced in open court on conclusion of hearing)

Judgment:
1. The appellants are challenging the denial of benefit of SSI exemption in terms of Notification No. 16/97-C.E., dated 1-4-1997 up to 1-6-1998 and thereafter under Notification No. 8/98-C.E., dated 2-6-1998 on the ground that they have used the 'Logo' and 'Brand name' of another unit viz. M/s. Shri Bajrang Alloys Ltd. The contention of the appellant is that the Raipur unit has not used the brand name or logo on the goods but was only affixed on the invoice. Their further contention is that they are the persons who have used the brand name themselves and it is not owned by any other unit and hence, they cannot be denied the benefit of the SSI Exemption.

2. We have heard both sides in the matter. We find from the impugned order itself that the other unit viz. M/s. Shri Bajrang Alloys Ltd., Raipur was not affixing the brand name or logo on the goods but were mentioning only on the invoice. The Apex Court, in the case of CCE, Jamshedpur v. Superex Industries - 2004 (174) E.L.T. 4 (S.C.), has held that when the brand name of 'others' not affixed on the goods but such brand name is indicated on the invoice that by itself is no ground to deny the benefit of the SSI Exemption. Further, the appellants have claimed to be the sole users of the brand name 'GOEL' and the logo. The other unit has never claimed the brand name or the logo. The Revenue has not proved that the logo in question or the words 'Goel' or 'Bajrang' are owned by the Raipur Company. The Raipur Company has not affixed this brand name on their goods and, therefore, the contention that the Revenue has not proved the use of logo by M/s. Raipur Company is sustainable and requires to be upheld in the light of the following two judgments.Mukur Pharmaceuticals Co. P. Ltd. v. CCE, Chandigarh - 2001 (135) E.L.T. 569 (Tri.-Del.) Both these rulings clearly lay down that the department has to prove that the brand name belongs to another person. The same has not been discharged. Furthermore, the appellants have shown through the records that the brand name is registered in their name and they are the owners thereof. They have filed the search report obtained from the database of the Trade Marks Registry and the Trade Marks Registry have recognized the Trade Marks as belonging to the appellants. Therefore, in the light of the CCE, Hyderabad v. Natco Pharma Ltd. case, this plea is required to be accepted. The Apex Court, in the case of CCE, Chandigarh v. Bhalla Enterprises - 2004 (173) E.L.T. 225 (S.C.), has held that the assessee would be equally entitled to the benefit, if they demonstrate the ownership of the brand name. As the appellants have established the same, the benefit is required to be granted. We have further noted that Revenue has not established that the appellant and M/s. Shri Bajrang Alloys Ltd., Raipur are related persons. Even if they are related, the matter is not material in so far as the availment of SSI exemption is concerned and the alleged relationship would not come in the way of claiming exemption as long as the conditions prescribed in the notification are satisfied. In this regard, the Tribunal ruling rendered in the case of Kiran Biscuits & Foods Ltd. v. CCE, Hyderabad - 2005 (179) E.L.T. 566 (Tri-Bang.) clearly applies to the facts of the case.CCE, Trichy v. Grasim Industries Ltd. - . The facts of this case are clearly distinguishable as the assessee has not used the brand name of another person, as was the case in Grasim Industries.

4. We also find that the plea raised by the assessee pertaining to the demands being hit by time-bar is also a well taken ground as they had filed the classification list and in which they had clearly mentioned that they would be availing the benefit of SSI exemption under the relevant Notification. They had filed price declarations and all other details. They had not used the brand name of another person and the Revenue has not proved their case that they have used the brand name of another person. Therefore, the impugned order, denying the benefit of SSI exemption is required to be set aside. The appeal is allowed with consequential relief, if any.

(Operative portion of this Order was pronounced in open court on conclusion of hearing)