- (1.) No one appears for the Respondent inspite of the fact that the notice of admission of appeal has been duly served upon the Respondent. In these circumstances, we have no option but to hear this appeal ex parte. The issue relates to using of the brand name 'VETCARE' by the Respondent which, otherwise stands registered in the name of M/s. Tetragon Chemie (P) Ltd., Bangalore. The Respondent claims itself to be a Small Scale Industrial Unit (SSI) and is manufacturing organic chemicals, disinfectants and other products. It claimed the benefit of Notification No. 175/86, dated 1-3-1986 and 1/93, dated 1-3-1993 as amended from time to time which provides for exemption from payment of excise duty to the SSI unit. However, Notification dated 1-3-1993 as amended also contains a provision that in case the said SSI unit is using brand name which belongs to other company the benefit of Notification dated 1-3-1986 shall not be available to such a SSI unit. The Collector of Central Excise, Bangalore, had passed order-in-original on the aforesaid ground, viz., the Respondent was using brand name VETCARE of M/s. Tetragon Chemie (P) Ltd., Bangalore. This order was passed after issuing show cause notice to the Respondent and giving the Respondent an opportunity of being heard. The Respondent filed appeal before the Tribunal. The said appeal resulted in the remand order passed by the Tribunal directing the adjudicating authority to carry out de novo adjudication after remand. The Commissioner passed orders dated 22-11-2001 confirming its earlier order. Against that order, the Respondent filed the appeal before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') which has been allowed setting aside the decision of the Commissioner, holding that the brand name VETCARE belongs to the Respondent and since it is a user of its own brand name, the case shall not come within the expression mentioned in the Notification dated 1-3-1993 [2004 (174) E.L.T. 337 (Tri.-Bang.)].
(2.) We find from the record, through which we were taken with the assistance of Mr. K. Radhakrishnan, learned Senior Counsel appearing for the Revenue, that the aforesaid conclusion of the CESTAT to the effect that the Respondent is using its own brand name is contrary to the records and on erroneous approach adopted by it. In this behalf, we may like to produce the following findings arrived at by the Commissioner:- "As I have held that the subject goods are classifiable under Chapter Heading 23.02 of the Central Excise Tariff Act, 1985 and eligible for exemption from duty, I am not inclined to discuss whether the said goods are branded or not. However, as regards the products Halquinol and Chlortech/Sanitech, there is no dispute about their classification, the findings on the limitation holds good and no duty needs to be payable upto 31-10-1994 as there is no suppression or misdeclaration. Further to this, the whole exercise of demanding duty by the investigation is based on the fact that the subject goods in the show cause notice are branded and affixed with the logo of M/s. Tetragon Chemicals, who are not eligible for the SSI exemption. The Assessee have argued that the brand name of Tetragon Chemicals have been registered only for Animal Feed Supplements and as such any person can use the brand name/logo on their products other than Animal Feed Supplements. In view of the above, they are eligible for the SSI exemption inasmuch as they have used the said brand name in respect of their goods falling under Chapter 29 and 38. I find that their argument cannot be accepted after the amendment of Notification No. 1/93 with effect from 1-4-1994 and for easy reference, I reproduce the brand name clause:- "The exemption contained in this Notification shall not apply to the specified goods bearing a brand name (registered or not) of another person."
(3.) In the face of the aforesaid findings which were arrived at on the basis of record, we fail to understand as to how the CESTAT could still hold that the brand name VETCARE and the logo which were owned by M/s. Tetragon Chemie (P) Ltd., Bangalore registered in their name, belongs to the Respondent. The CESTAT has merely gone by the assertion of the Respondent that M/s. Tetragon Chemie (P) Ltd., Bangalore has permitted them to use this name. That permission shall not make the Respondent owner of the brand name. It is thus, clear that the brand name belongs to M/s. Tetragon Chemie (P) Ltd., Bangalore, which brand name is allowed to be used by the Respondent and in these circumstances, following Explanation 8 to the Notification No. 175/86, dated 1-3-1986 would clearly become applicable. This explanation defines brand name and reads as under:- "Explanation VIII - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.";