UNISON ELECTRONICS PVT. LTD. AND ANR. v. COMMISSIONER, CENTRAL EXCISE, NOIDA

The Judgement of the Court was delivered by DR. ARIJIT PASAYAT, J. B

1Copy pinpoint1. In these appeals challenge is to the order passed by the Customs, Excise & Service TaxAppellate Tribunal, New Delhi "' ·-i (in short 'CESTAT'). The basic issue is whether the appellants are clearing excisable goods manufactured by them bearing __, the brand name of another person. c

2Copy pinpoint2. Background facts in a nutshell are as follows: The SSI Exemption Notification which provides exemption to the excisable goods manufactured by a SSI unit provides that the exemption shall not apply to goods bearing the brand D ~ name or trade name, whether registered or not, of another ' I . persons. Explanation to Notification defines the brand name as a name or mark, such as a symbol, monogram, label, signature or invented word or writing which is used in relation to the specified goods for the purpose of indicating a connection in E the course of a trade between specified goods and some person using such name or mark with or without any indication of the identity of that person . .. ~ According to the appellants they manufacture ice-cream makers cooler and Popcorn makers and avail of the benefit of F SSI Exemption Notification and sell ice cream maker in their own brand name "CREMICA" and sell the same to different customers including United Tele Shopping (in short 'UTS') and Tele Shopping Network (in short 'TSN') and that in respect of sale to UTS & TSN the goods were being examined by the G !!!!!( 1 Supervisors of these customers before dispatch from their factory and stickers bearing UTS/TSN were being affixed and ~ these sticker bear the words "Checked SI. No. Do not remove this sticker" and·that the Department has treated the words UTS and TSN as brand name belonging to other and has disallowed H

p. 610 Copy page pinpoint

l. A the benefit of small scale exemption notification. It was submitted ' that the words UTS and TSN are not brand names but are the abbreviations of the name of the marketing companies which (~ • does not amount to use of the brand name. Stand of the department was as follows: B It has not been controverted by the appellants that the excisable goods before clearance from their factory premises bear stickers of UTS/TSN and as per definition of the brand name given in SSI Exemption Notification, "brand name" means c any name, symbol, monogram, label, signature or invented word or writing which indicates connection in the course of trade between excisable goods and same person using such name and that the words UTS/TSN mentioned on the packaging of .~ the products indicate the connection in the course of trade with ·, I D UTS and TSN. .. I

After considering the rival stands the CESTAT concluded as follows: "A perusal of the sample shown by the learned consultant at the time of hearing revealed that the sticker mentions E that it has been put after checking the quality of the product ' manufactured by the appellants. In fact the sticker reads asunder: D_ .~-

Tele Shopping Network

G UTS United Teleshopping

Quality at your doorstep H

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r- i A notification or on which no excise duty is payable for any <- .k, • '\ other reason; t- ~ (b) any clearances bearing the brand name or trade name of another person, which are ineligible for the grant of this t~

·exemption in terms of paragraph 4 below : B (c) any cl.earances of the specified goods which are used as inputs for further manufacture of any specified goods within the "factory of production of specified goods. Such . )-- I

clearances of specified goods used as inputs shall be ~

c deemed to be exempt from the whole of the duty of excise leviable thereon: (d) any clearances of strips of plastics used within the '- factory of production for weaving of fabrics or for man_ufacture of sacks or bags made of pqlymers of ethylene D or propylene. r-,,

4Copy pinpoint4. The exemption contained in this notification shall not )

apply to goods bearing a brand name or trade name, 1~,. whether registered or not, of another person, except in the 1• following case:~ E ~

,.. (a) where the specified goods, being in the nature of ..... COfl'.lponents or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in Chapter · X of the Central Excise Rules, 1944. Manufacturers, whose aggregate value of clearances of the specified goods for use as original equipment does not exceed rupees thirty lakhs in a financial year, may submit a declaration regarding such use instead of following the procedure laid down in Chapter X of the said rules; ,. ·- (b) where the goods bear a brand name or trade name of Khadi and \(illage lndu.stries Commission or of the State Khadi and Village Industry Board or the National Small \; .. H Industries Corporation or the State Small Industries t P; .

UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 613 CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

Development Corporation or the State Small Industries A· Corporation;

5Copy pinpoint5. Explanation - For the purpose of this notification :- (a) "brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to B 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 c using such name or mark with or without any indication of the identity of that person; (b) where the specified goods manufactured by a - manufacturer bear a brand name or trade name, whether registered or not, of another manufacturer or trader, such D specified goods shall not, merely by reason of that fact be denied to have been manufactured by such other manufacturer or trader."

6Copy pinpoint6. In Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders (2004 (11) sec 801) it was noted as follows: E

"5. The Tribunal then proceeds on the basis that the exemption can be denied only if the trade mark or brand nam~ is used in respect of the same goods for which the trade mark is registered. In coming to this conclusion we F are afraid that the Tribunal has done something which is not permissible to be done in law. It is settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a G particular notificat~on. Clause 4 of this notification and the .t Explanation (set out hereinabove) make it clear that the exemption will not apply if the specified goods (i.e. scented supari) bear a brand or trade name of another person. Neither in clause 4 of the notification nor in Explanation IX H

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A is it provided that the specified goods must be the same or similar to the goods for which the brand name or trade name is registered. The Tribunal has, in adopting the above reasoning, effectively added to the notification words to -, '

the effect "brand name or trade name in respect of the B sa,me goods". This is clearly impermissible. It is to be s~en that there may be an unregistered brand name or an unregistered trade name. These might not be in respect of any particular goods. Even if an unregistered brand name or trade name is used, the exemption is lost. This ·- "": c makes it very clear that the exemption would be lost so long as the brand name or trade name is used irrespective of whether the use is on same goods as those for which the mark is registered.

6. The Tribunal had also held that under the notification the D_ use must be of "such brand name". The Tribunal has held that the words "such brand name" show that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption , __

would not be lost. We are afraid that in coming to this ' E conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the 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, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the notification. In this case, admittedly, the brand name or trade name is the word "ARR" with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the respondents out of clause 4 and make them eligible to the benefit of the notification."

7Copy pinpoint7. Similarly, in Commissioner of Central Excise, 'i"=

UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 615 CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

,,; Chandigarh-I 11. Mahaan Dairies (2004 (11) SCC 798) in paras A 6 and 8 it was noted as follows: "6. We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders (2004 (11) SCC 801) wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on 8 which the trade name or mark is used are the same in " respect of which the trade mark is registered. Even if the 1111 goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, C once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification.

8Copy pinpoint8. It is sE~ttled law that in order to claim benefit of a 0 notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders E v. CCE (1999 (109) ELT 204 (CEGAT). We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside." F

8. Further in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Anr. (2005 (1) SCC 526) this Court stated the position in law as follows: "7. The dispute, in the instant case, is as to whether the respondents who are manufacturers of plywood under their G own brand name "Pelican" have made themselves. disentitled to the benefit of small-scale exemption Notification No. 175/86-CE by using a logo indicating "MERINO" on their products along with their brand name. The next question which arises is as to whether the H

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A markings or inscriptions should be considered as the brand name of M/s Merinoply and Chemicals Ltd. and will come ' '

within the mischief of clause 7 read with Explanation VIII of the notification, as contenc:jed by the department. Clause 7 reads as follows : B "The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the

- specified goods with a brand name or trade name '~

(registered or not) of another person who is not eligible for the grant of exemption under this notification." c Explanation VI 11 of clause 7 reads as follows : '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 tor 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.'

8. Mr G.E. Vahanvati, learned Solicitor General,.submitted that the impugned goods admittedly contained the registered logo "MERINO" belonging to and owned by M/ s Merinoply and Chemicals Ltd. Thus it was a clear case .. F where the impugned goods were· admittedly affixed with registered logo/trade mark of the other person not eligible to SSI exemption. According to the learned Solicitor General, CEGAT erred .in not appreciating that to attract , provision of clause 7 of Notification No. 175/86-CE, it is G sufficient that the product contained a trade mark/logo of another ineligible person which was fully satisfied in the present case and whether the product also contained a brand name/trade name/logo of the manufacturer would not and cannot alter such position. Arguing further, learned H Solicitor General contended that the interpretation of

UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 617 CENTRAL EXCISE, NOIDA [DR ARIJIT PASAYAT J] -

Explanation VIII as advanced by the Tribunal does not A appear correct in law and fact. It was imperative that by using the registered logo "MERINO" belonging to M/s Merinoply and Chemicals ltd. on their own products, the first respondent herein, M/s Emkay Investments ltd. fulfilled. the purpose of indicating a relation between the said s products and the logo owner so as to influence the trade and, therefore, the provision of Explanation VIII were fully satisfied so far as the present case was concerned. Learned Solicitor Gen_eral also submitted that the exception or exempting provision in a taxing statute should c be construed strictly and it is not open to the court or to the tribunal to ignore conditions prescribed in the exemption notification.

9Copy pinpoint9. In support of his submissions, learned Solicitor General, relied on the following judgments: D

1. B.H.E.L. Ancillary Assn. v. CCE (1990(49) ELT 33 (Mad)

2. CCE v. Rukmani Pakkwel/ Traders (2004 (11) SCG 801

3. CCE v. Mahaan Dairies (2004 (11) SCC 798) . E

4. CCE v. Bhalla Enterprises (2004 (173) ELT 225 15_._ We have gone through the common order passed by the Tribunal. In our view, the Tribunal has err~d in not appreciating that to attract provision of clause 7 of Notification No. 175/86-CE, it is sufficient that the product F contained a_ trade mark/logo of another ineligible. person which was fully satis.fied in the instant case and whether the product also contained the brand name/trade name/ logo of the manufacturer would not and cannot.alter such,.,- position. Likewise, the interpretation of Explanation VIII G as advanced by the Tribunal does not appear to be correct in law and in fact. It was imperative that by using the registered logo "MERINO" belonging to M/s Merinoply and Chemicals Ltd. on their own product M/s Emkay Investments Ltd. fulfilled the purpose of indicating a relation H

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A between the said products and the logo owner so as to influence the trade and therefore, the provisions of '""' Explanation VIII were fully satisfied so far as the case on hand was concerned. The finding of the Tribunal to the contrary, in our opinion, is wrong and liable to be set aside."

B 9. Considering the.position involved in Reiz Electrocontrols (P) Ltd. v. Commissioner of Central Excise, Delhi-I (2006 (6) sec 213) the position was re-iterated as follows : "8. So far as the views regarding non-eligibility are /"

c concerned view expressed by ~his Court in several cases needs to be noted.

9. In Commissioner of Central Excise, Chandigar-1 v. l;_ Mahaan Dairies [2004 (166) ELT 23 (SC)] it was noted (in para 6) as follows: D "We have today delivered a judgment in Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders - )

· . 2004 (165) E.L.T. 481 (S.C.) (Civil Appeal Nos. 3227- 3228/1998) wherein we have held in respect of another . Notification containing identical words that it makes no E difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different so long as the trade name or brand name of some other Company is used the benefit of the Notification would not be ... F available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of Notification." ;.

10Copy pinpoint10. In Union of India v. Paliwal Electricals.(P) Ltd. and Another [(1996) 3 sec 407] it was noted (in paras 1O and 11) as follows: "10. We are of the opinion that while examining the challenge to an exemption notification under the Central Excise Act, the observations in the decisions aforesaid should be kept in mind. It should also be remembered that

• UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 619 CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

generally speaking the exemption notification and the A ,,.... terms and conditions prescribed therein represent the policies of the Government evolved to subserve public interest and public revenue. A very heavy burden lies upon the person who challenges them on. the ground of Article ' (

14. Unless otherwise established, the court must presume B that the said amendment was found by the Central ~ Government to be necessary for giving effect to its policy -( (underlying the notification) on the basis of the working of

• ~ the said notification and that such an amendment was found necessary to prevent persons from taking unfair advantage of the concession. In fact, in this case, the c explanatory note appended to amending notification says so in so many words. If necessary, the Court could have called upon the Central Government to establish the reasons behind the amendment. (It did not think it fit to do so.) It is equally necessary to bear in mind, as pointed out D repeatedly by this Court, that in economic and taxation ·-f sphere, a large latitude should be allowed to the legislature. The courts should bear in mind the following observations made by a Constitution Bench of this Court in R.K. Garg v. Union of India [1981 (4) SCC 675]: (SCC pp. 690-91, E para 8) "Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than F Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, G where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where H

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A fundamental human rights are involved. Nowhere has this "--, admonition been more felicitously expressed than in Morey v. Doud [354 US 457 (1957)] where Frankfurter, J. said in his inimitable style: 'In the utilities, tax and economic regulation cases, there B are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy not to reconstruct. When these are added >· to the complexity of economic regulation, the uncertainty, c the liability to error, the bewildering a conflict of the experts, and the number of times the Judges have been overruled · by events-self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability.' The court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many •· problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units

- and are not to be measured by abstract symmetry' that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one • may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation· but on that account alone it cannot be struck down as invalid; The courts cannot, as pointed out by the United States Supreme G Court in Secy. of Agriculture v. Central Roig Refining Co. [ 94 L Ed 381 : 338 US 604 (1950)] be converted into -\ tribunals for relief from such crudities c;ind inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because H it is not possible for any legislature to anticipate as if by

UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 621 CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

,..i some divine prescience, distortions and abuses of its A ' legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its e framing, it is difficult to conceive of a legislation which is not capable of being abused by B perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the

- 1 generality ·of its provisions and not by its crudities or inequities or by the possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic c approach which must guide and inspire the legislature in dealing with complex economic issues."

11Copy pinpoint11. The same principle should hold good in the matter of exemption notifications as well, for the said power is part D and parcel of the enactment and is supposed to be -of. employed to further the objects of enactment - subject, of course, to the condition that the notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See PJ. Irani V State of Madras [(1962) 2 SCR 169]". E

11. In Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi [2005 (189) ELT 257 (SC)] it was held as' foliows at para 3 : + "Paragraph 4 and Explanation IX of Notification have been construed by this Court in Commissioner of Central F . Excise v. Rukhmani Pakkwell Traders, 2004 (165) E.L.T. 481; as also in Commissioner of Central Excise, Chandigarh v. Mczhaan Dairies, 2004 (166) ELT. 23. In bot~ these decisions this Court held that Paragraph 4 read with Explanation IX of the notification could not be G construed in the manner as contended by the assessees, namely, to make it necessary for the owner of the trade mark/trade name to use the goods in respect of the specified goods manufactured by the assessee. We see no reason to differ with the reasoning of this Court in the H

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A aforesaid decisions. Clause 4 of the Notification read with Explanation IX clearly debars those persons from the benefit of the exemption who use someone else's name in connection with their goods either with the intention of indicating or in a manner so as to indicate a connection B between the assessees goods and such other person. There is no requirement for the owner of the trade mark using the name or mark with reference to any particular goods. The object of the exemption notification was neither · to protect the owners of the trade mark/trade name nor the consumers from being misled. These are c considerations which are relevant in cases relating to disputes arising out of infringement/passing off actions under the Trade Marks Act. The object of the Notification is clearly to grant benefits only to those industries which otherwise do not have the advantage of a brand name. D The decisions cited by the Counsel appearing on behalf of the assessees relate to decisions involving Trade Mark disputes and are in the circumstances not apposite."

13Copy pinpoint13. It appears that such a stand was not taken before the Tribunal. In any event in view of what has been stated by this Court in Mahaan Dairies' case (supra) the Tribunal has to consider the plea. ln-Mahaaf'J Diaries' case (supra) it was observed as follows: "9. It was however, urged that the respondents have applied for registration of the Mark "Mahaan Taste Maker". We clarify that if and when they get their mark registered then they would become entitle to the benefit of the Notification in accordance with Board's Circular No.88/ 88, dated 13.12.1988."

G 10. The conclusions of CESTATare essentially factual and, therefore, there is no scope for interference. In view of the factual position noted by CESTAT and the position in law indicated above, the appeals are dismissed. No costs.

R.P. Appeals dismissed.