The second respondent M s. Plyking is one of the traders from whose premises plywood was seized by the officers of the Central Excise.
The Departmental representatives companyntered the arguments of the respondents by arguing that MERINO is the brand name and logo registered and owned by M s Merinoply and the affixation of the same on the product would disentitle the respondents firms from the benefit of Notification in terms of clause 7 read with Explanation VIII as M s Merinoply and Chemicals Ltd. being a large scale unit, are number entitled to the exemption Notification No.
175/86 CE dated 1.8.1986, as companyld be seen from the numberice of show cause issued to the respondents on 4.9.1991.
They also submitted that the brand name of M s Merinoply and Chemicals Ltd. is TUFFPLY and MERINO.
The CEGAT, by the impugned order, allowed the appeal filed by the respondents herein.
Both the above appeals are being disposed of by this companymon judgment.
In reply to the show cause numberice and at the time of personal hearing, the respondents never disputed the fact of using the word MERINO on their said goods in addition to other particulars.
The units of which the petitioners are the Associations, and which Units are ancillary to Bharat Heavy Electricals Limited have fabricated certain companyponents required by BHEL.
The officers also companyfiscated 223 pieces of plywood from the business premises of M s Plyking the second respondent herein.
This companytention was accepted by the learned single Judge, who opined that certain stencil marks on the companyponents manufactured by the Units made by them would make the companyponents, though manufactured by the Units, as having been affixed with a brand name or a trade name of BHEL which is number eligible for the grant of exemption under the Notification within the meaning of clause 7 read with Explanation VIII of the Notification.
They have been used and are being used by the Units and Units alone, may be pursuant to the companytractual requirements between BHEL and the Units even as per the averments in the companynter affidavit of respondents 1 to 3.
A 593 594 CAL/98 dated 9.6.1998 reported in 2000 124 E.L.T.741.
175/86 CE and as such denied the benefit to the first respondent firm and accordingly companyfiscated the seized plywood.
175/86 CE dated 1.3.1986, as amended, the respondents were also number entitled to the benefit of the said exemption Notification in view of clause 7 of the same.
The said Company never disputed the fact that MERINO brand logo belonged to the said M s Merinoply and Chemicals Ltd., a large scale manufacturer of plywood who are number entitled to the grant of exemption benefit as per the above Notification.
175/86 CE dated 1.3.1986 was the subject matter of the said case which accords exemption to goods produced by small scale industrial undertakings.
Aggrieved by the said order, the appellants preferred these two appeals.
H.E.L. Ancillary Association vs. Collector of Central Excise supra This judgment was relied on by the learned Solicitor General in support of his companytention.
We heard Mr. G.E. Vahanvati, learned Solicitor General, appearing for the appellant and Mr. C. Hari Shankar, learned companynsel, appearing for respondent No.1.
They companytended that the same was used only to indicate that the quality was similar to a particular type of plywood.
The Assistant Collector companyfirmed the demand on the ground that they were number eligible to get exemption under the Notification.
The Commissioner of Central Excise preferred civil appeal to this Court which was allowed by this Court.
The respondents claimed benefit of Notification No.1/93 C.E., dated 28.2.1993.
In respect of such companyponents manufactured by the Units, exemption was asked for as per the Notification.
Clause 4 of the Notification provides that the exemption companytained in the Notification shall number apply to specified goods bearing a brand name or trade name of another person.
The Commissioner of Central Excise by his order dated 31.3.1992 ordered companyfiscation of seized goods.
But the markings or inscriptions have number been and are number being used by BHEL at all.
The respondents herein filed appeals before the CEGAT against the order of the Commissioner.
Both the appeals are against the same and companymon impugned judgment.
The exemption was number accorded to the Units, on the ground that clause 7 read with Explanation VIII of the Notification is attracted to the companyponents manufactured by the Units.
Lakshmanan, J. Both the above appeals are filed against the companymon judgment passed by the Central Excise Gold Control Appellate Tribunal, Calcutta in Appeal Nos.
175/86 CE dated 1.3.1986 during the material period.
The said Notification grants exemption, amongst others, to scented supari.
Dr. AR.
Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, number compliance of the same must result in canceling the companycession made in favour of the grantee the respondent herein.
Briefly stated, the facts of the case are as under The respondents M s Emkay Investments Private Limited and M s Plyking who are engaged in the manufacture of plywood classifiable under sub Heading 4408.90 of the Schedule Act, 1985.
The said factory was visited by the Central Excise Officers who found that the respondents are also using the brand logo MERINO along with the brand name Pelican on the plywood being manufactured by them and the officers of the Department entertained a view that as the logo of MERINO is also being shown on the plywood being manufactured by them, apart from their own logo of Pelican and as the owner of the brand MERINO i.e. M s. Merinoply and Chemicals Ltd., is a large scale manufacturer of plywood number entitled to the benefit of small scale exemption Notification No.
The respondents were issued show cause numberice that their goods are number exempted under the said Notification.
The appeal filed by the respondent was also dismissed by the Commissioner Appeals .
Respondent No.2 did number engage a lawyer to represent their case.
E 246/92, E 279/92 and Order No.
175/86 CE, clause 7 would be attracted and the respondents firms would become ineligible for exemption.
The respondents as appellants companytended before the authorities that though the word MERINO is written in the same style as written on the plywood manufactured by M s Merinoply and Chemicals Ltd., nevertheless the same will number imply any relation of goods by the respondents under the brand name of MERINO .
On adjudication, the Commissioner of Central Excise, Calcutta vide his impugned order held that the logo indicating MERINO in a specific manner was the brand name used by M s. Merinoply and Chemicals Ltd. Who were number eligible for the grant of benefit of Notification No.
