V.K.AGRAWAL,MEMBER (T) - (1.)THE issue involved in these four appeals filed by revenue is whether the excisable goods manufactured by the Respondents, M/s. Prakash Gramodyog Samiti, bears the brand name of another person, namely M/s. Corona Plus Industries Ltd. (M/s. Corona Plus in short).
Shri V. Valte, learned SDR, submitted that the Respondents manufacture detergent powder bearing the brand name "Saving Plus"; that under an Agreement dated 6 -4 -1996 with M/s. Corona Plus, the Respondents supply their entire production of detergent powder to M/s. Corona Plus; that enquiry conducted by the Department revealed that the brand name "Saving Plus" belongs to M/s. Corona Plus; that it is evident from the fact that M/s. Corona Plus are getting detergent cakes manufactured from M/s. Navodaya Khadi Gramodyog Samiti (Navodaya in short) under the brand name "Saving Plus"; that it is specifically mentioned in the Agreement entered into between M/s. Corona Plus and Navodaya that M/s. Corona Plus are "the absolute owner/registered user of the Trade Mark, 'Saving Plus' for the detergent cake."; that three show cause notices were issued for denying the benefit of Notification No. 88/88 dated 1 -3 -88, as amended by Notification No. 35/97, dated 13 -6 -97, and for demanding Central Excise duty and imposition of Penalties; that the Commissioner, under the impugned Order has dropped the proceedings, observing that the brand name "Saving Plus" belongs to the Appellants and the benefit of Notification No. 88/88 -C.E. cannot be denied to them.

(2.)THE learned SDR, further, submitted that Corona Plus has been getting "Saving Plus" cake manufactured from Navodaya and "Saving Plus" detergent powder from the Appellants and marketing the same and Corona Plus Industries Ltd. is printed boldly on the products whereas the name of the Appellant is printed in small and inconspicuous manner; that Corona Plus had written to their distributors under their Circular dated 7 -3 -97 that they were the owner of the products "Saving Plus" cakes and "Saving Plus" detergent powder; that the Appellants have applied for Registration of brand name in their name only after the search of their premises and this clearly shows that this is an afterthought exercise. He relied upon the decision in the case of Indian Mat Advisors & Leasing Pvt. Ltd. v. CCE, Delhi, 2002 (143) E.L.T. 241 (S.C.) wherein it has been held as under : -
"If a manufacturer affixes to the specified goods a brand or trade name of another person who is eligible for the grant of the exemption under the notification, he is not debarred from getting the exemption; but if he affixes to the specified goods the brand or trade name of a person who is not eligible for the grant of that exemption, he is not entitled to avail of that exemption himself. A person who is not a manufacturer and who, therefore does not pay excise duty is a person who is not eligible for the grant of the exemption under the Notification. If the manufacturer has affixed to the specified goods a brand or trade name belonging to such person, he renders himself ineligible to get the exemption under the Notification."

(3.)HE also submitted that the extended period of limitation is invocable for demanding the duty as they had suppressed the fact that the brand name does not belong to them from the Department; that they had never mentioned that the brand name does not belong to them. He relied upon the following decisions : -
(i) Madras Petro -chem Ltd. v. CCE, Madras - 1995 (108) E.L.T. 611 (S.C.)

(ii) Gujarat Insecticides Ltd. v. CCE, Vadodara - 2002 (147) E.L.T. 86

He finally contended that Penalty under Rule 209 A of the Central Excise Rules, 1944 is imposable on Shri V.C. Pai, Secretary of the Appellants as he had knowledge of all transactions and he was on the Board of M/s. Corona Plus throughout the relevant period.

Ountering the arguments, Shri A.R. Madhav Rao, learned Advocate, submitted that the Respondents manufacture detergent powder; that Agreement dated 17 -6 -1996 between Corona Plus and Navodaya is for manufacture and supply of detergent cake which is a different product. Reliance has been placed on the decision in the case of CCE, Chandigarh v. Fine Industries, 2002 (146) E.L.T. 53 (T - LB) wherein the Larger Bench of the Tribunal has held that the mischief of Para 4 of Notification No. 1/93, would be applicable when the goods are identical goods; that as the goods manufactured by Navodaya and the Respondents are different the fact that Corona Plus is getting detergent cake manufactured under brand name "Saving Plus" from M/s. Navodaya is of no relevance. He, further, submitted that the Respondents are the owner of "Saving Plus" brand name for detergent powder; that they have applied to the Registrar of Trade Marks, Mumbai on 12 -8 -97 for registration of brand name "Saving Plus" in their name in respect of 'Detergent Washing Powders'; that the Joint Registrar of Trade Marks, Mumbai has issued a certificate dated 13 -6 -2000 to the effect that no trade mark, identical or deceptively similar to the artistic work represented in Respondents' application for such registration has been filed; that the Commissioner has recorded this fact in Para 14.1 of the impugned Order.

5.2 The learned Advocate also contended that the Respondents are also manufacturing Detergent Powder under brand names "New Extra Plus and Saving" which are similar to brand name "Saving Plus" which has not been disputed by the Department; that M/s. Corona Plus have never claimed the ownership of Saving Plus brand name for Detergent Powder; that it has been held by the Supreme Court in the case of Vishnu Das Trading v. Wazir Sultan Tobacco Ltd., AIR 1966 SC 2275 "that the varieties of articles made of tobacco are differently used and they have their distinct quality and separate identity. These articles are also marketed as distinct articles of use in different manner........ All such products may come under the broad classification "manufactured tobacco", each of the said products is always held as a distinct and separate article of use having its specific characteristics........ Therefore, if a trader or manufacturer actually trades in or manufacture only one or some of the articles coming under a broad classification and such trader or manufacturer has no bona fide intention to trade in or manufacture other goods or articles which also falls under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification and by that process preclude other traders or manufacturer to get registration of separate and distinct goods which may also be grouped under the broad classification." He, therefore, submitted that Corona Plus is only manufacturing Detergent Cake under the brand name "Saving Plus" and Detergent Powder which is a different product can be produced by the Respondents under the same brand name. He finally mentioned that Secretary of the Respondents does not work in Corona Plus; that the Commissioner in Para 18(b) of the impugned Order has given his findings that V.C. Pai had resigned from Corona Plus on 30 -1 -91 and only thereafter on 3 -3 -92 joined the Respondents as Secretary of the Executive body.