S.N.VARIAVA, J. - (1.) THESE appeals are filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 14th October, 1999. The respondents are a'subsidiary of one M/s Grasim Industries Ltd. On the bags of cement manufactured by them the respondents use the following words: "Manufactured by Dharani Cements Ltd. A Subsidiary of Grasim Industries' Ltd."
(2.) THE Tribunal has, following the earlier Judgments of the Tribunal in the cases of Chemguard Coatings Pvt. Ltd. v. Commissioner of Central Excise, Chennai and Nippa Chemicals (Pvt.) Ltd. v. Collector of Central Excise, Madras, and a Judgment of this Court in the case of Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Chandigarh, held that the benefit of Notification No. 5/98 CE dated 2nd June, 1998 is not lost by the respondents because they show on their product the name of the holding company, namely M/s. Grasim Industries Ltd. For a consideration of these appeals, it is first necessary to set out Notification 5/ 98 CE dated 2nd June, 1998, which reads as follows: "Notification No. 5/98-C.E., dated 2-6-1998 Effective rate of duty for specified goods of Chapters 13 to 96 In exercise of the powers conferred by subsection (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling with the Chapter, heading no. or sub-heading no. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said Schedule), specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the relevant conditions specified in the Annexure to this notification, and referred to in the corresponding entry in column (5) of the said Table. Explanation. - For the purposes of this notification, the rate specified in column (4), is ad valorem rate, unless otherwise specified. JUDGEMENT_270_JT4_2005Html1.htm Condition Conditions No. 1. If the manufacturer of the food preparations produces a certificate from an officer not below the rank of a Deputy Secretary to the Government of India or not below the rank of a Deputy Secretary to the State Government concerned to the effect that such food preparations have been distributed free to the economically weaker sections of the society under a programme duly approved by the Central Government or the State Government concerned, within five months from the date of clearance of such goods or within such further period as the Assistant Commissioner of Central Excise may allow in this regard. 2.If the cement manufacturer produces to the Assistant (i) Commissioner of Central Excise a certificate issued by an officer not below the rank of Director of Industries in the State Government indicating the installed capacity of the factory. The explanation under this notification shall be (ii) applicable upto a maximum quantity of ninety-nine thousand tones in a financial year. For computing the quantity of ninety-nine thousand tonnes in a financial year, the clearances of cement effected under any other notification shall be included. However, the clearances of cement effected on payment of duty at the rate of Rs. 350 per tonne shall not be taken into account for computing the above mentioned quantity of ninety nine thousand tonnes. The exemption under this notification shall not be (iii) applicable to, cement manufactured from such clinker which is not (a) manufactured within the same factory and (b) cement bearing a brand name or trade name (whether registered or not) of another person; Explanation. - For the purpose of condition (ii), "brand name" or "trade name" means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, signature, or invented words or any writing which is used in relation to a product for the purpose of indicating, or so as to indicate, a connection 'in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person." The appellants contended that the respondents were using the name of M/s. Grasim Industries Ltd. with the purpose of indicating a connection between the product i.e. the cement manufactured by them, and M/s Grasim Industries Ltd. which is a well known cement manufacturer. In reply, it has not been denied that M/s. Grasim Industries Ltd. is a well known cement manufacturer. It has also not been denied that the purpose of putting the name "M/s. Grasim Industries Ltd." was to show a connection between the product and M/s. Grasim Industries Ltd. However, what has been contended is that the words "M/s. Grasim Industries Ltd." are neither a brand name nor a trade name. It is contended that mere use of the name of a company does not amount to using a brand name or trade name of some other company.
(3.) THE Commissioner, by his Order dated 19th May, 1999, held that the respondents were not entitled to the benefit of the Notification. It was held that they were liable to pay a differential duty of Rs. 47,74,961/- and a penalty of Rs. 10,00,000/- under Rule 173Q of the Central Excise Rule, 1944. THE respondents filed an appeal before the CEGAT which, as stated above, has been allowed on the basis of Judgments referred to earlier. Apart from the Judgments relied upon by the Tribunal, some other Judgments of the Tribunal, taking a similar view, have also been cited before us. It was submitted by Mr. Vellapally, on behalf of the respondents, that based on the Judgment of this Court in Astra Pharmaceuticals (P) Ltd.'s case (supra) the Tribunal has consistently been holding that the benefit of such Notification is not lost by use of the name of a company. It was submitted that most of the Judgments of the Tribunal were not appealed against by the Department. It was submitted that as no appeal had been filed against those Judgments, the Department should not be allowed to discriminate by filing an appeal in this case.;