1. Appellants have filed these two appeals against the common impugned order dated 29-2-2008 passed by the Commissioner (Appeals) wherein the Commissioner (Appeals) has dismissed the appeals of the appellants. Appellant No. 1 is proprietorship firm and appellant No. 2 Mr. M. Balakrishnan is overall in-charge of the said firm. Both the appeals are being disposed of by this common order. Briefly the facts of the case are that the appellant-firm is a manufacturer of various types of wet grinders. The firm has been availing the exemption under Notification No. 8/2003-C.E, dated 1-3-2003 and is not registered under the Central Excise Rules. On the reasonable belief that the appellants are removing their products using the brand name 'LAKSHMF owned by another unit, searches were conducted at the factory premises and after further investigation, a show-cause notice was issued to demand duty of Rs. 4,95,390/- on the goods cleared availing ineligible exemption during the period from January, 2001 to Augus
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t, 2005 and proposing penalty under Section 11AC of the Central Excise Act, 1944 and Rules 173Q, 209 and 210 of erstwhile Central Excise Rules, 1944 and Rules 25 and 27 of the Central Excise Rules, 2001/2002. Separate penalty under Rules 209A and 26 of the erstwhile Central Excise Rules, 1944. The original authority after due process of law confirmed the demand considering the value as 'cum-duty price' and imposed penalty. Aggrieved by the Order-in-Original, appellants filed appeals before the Commissioner (Appeals) who rejected the appeals of the appellants. Hence the present appeals.
2. Heard both the parties and perused records.
3.1 Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed contrary to the evidence on record as well as contrary to the binding judicial precedent on the same issue. Learned counsel further submitted that the appellants were carrying on the manufacturing activity from the year 1980 and selling the wet grinders affixing the name plates/stickers containing the house mark "Lakshmi Lew" and the other party M/s. Sri Lakshmi Industries, Coimbatore obtained Trade Mark Registration of "Lakshmi" on 13-2-1984. Hence the case of the Department that the appellants were using the trade mark of "Lakshmi" belonging to Sri Lakshmi Industries is untenable. In support of this submission, he relied upon the decision of the Apex Court in the case of CCE v. Strangen Immuno Diagnostics : 2015 (318) E.L.T. 585 (S.C.) wherein it was held that the assessee and another person were using the same logo/trade mark simultaneously in their own right and the assessee claiming to have started its use first and other person got it registered subsequently. In such situation the assessee cannot be denied SSI exemption on the ground of using the brand name of another person. He further submitted that the trade mark registration obtained by Sri Lakshmi Industries, Coimbatore is a combination of name and the manner in which it was written and the marks were arranged in a particular way and affixed on the goods. Whereas in the present case barring use of common name, there is no similarity whatsoever, between the logo used by the appellant and that used by Sri Lakshmi Industries. Therefore as per the counsel, the appellants were not using the brand name of another person and are eligible for SSI exemption. For this submission, he relied upon the decision of the Tribunal in the case of CCE v. Sams Techno Mech : 2016 (343) E.L.T. 393 (T) wherein it was held that SSI exemption cannot be denied when the goods were cleared affixing metal labels which contained details such as manufacturer's name, products name, model, serial numbers, address, telephone number, fax number and e-mail, etc.
3.2 He further submitted that Sri Lakshmi Industries were threatening them by means of circulars/advertisements/notices with action and proceedings for infringement of the trade mark or passing of business or goods. The appellants filed a Civil Suit No. 1296 of 1988 before the Hon'ble High Court of Madras praying for a permanent injunction restraining Sri Lakshmi Industries from continuing the threats. The Hon'ble High Court passed a temporary injunction order dated 13-10-1988 that Sri Lakshmi Industries should not threaten the appellants regarding the use of the brand name "Lakshmi". The Court vide judgment dated 11-2-1997 held that the interim injunction granted was made permanent and the court further held that Sri Lakshmi Industries was not prevented from taking any lawful action in terms of Trade and Merchandise Marks Act against the appellants. But thereafter Sri Lakshmi Industries has not taken any action on the appellant which act establishes beyond doubt that appellant had not violated any provisions of Trade Marks Act by using the house mark "Lakshmi Lew".
3.3 Learned counsel further submitted that the same Commissioner (Appeals) in respect of another unit using the same name had already taken a view that in view of the difference in the nature of the logo and the word "Lakshmi" which was used by the assessee, the assessee in that case would not be said to have used the brand name belonging to another person for the purpose of denying it the benefit of exemption notification and the copy of the said Order Nos. 61 & 62/2008, dated 24-4-2008 has also been placed on record. He also submitted that the same Commissioner passed a Order-in-Appeal No. 83/2008-C.E., dated 20-11-2008 allowed appeal filed by the appellant for the subsequent period (September, 2005 to July, 2006) involving identical issue as in the present appeal and further the Committee of Commissioners vide Review Order dated 11-2-2009 has accepted the above Order-in-Appeal. Since the Department has accepted the issue on merits for the subsequent period, contrary to the stand taken in the impugned order for the earlier period, is not sustainable in law. For this submission, he relied upon the following decisions:-
i. Marsons Fan Industries v. CCE : 2008 (225) E.L.T. 334 (S.C.).
ii. Hindustan Coca Cola Beverages Pvt. Ltd. v. CCE : 2012 (284) E.L.T. 254 (T).
iii. CCE v. Mehra Traders: 2004 (172) E.L.T. 195 (T).
iv. Jayaswals Neco Ltd. v. CCE - 2007 (8) S.T.R. 305 (S.C.).
3.4 He also submitted that the appellant has a bona fide belief that they were entitled for SSI exemption as various judicial decisions were in their favour during the disputed period and for this submissions, he relied upon the following decisions:-
i. SNS (Minerals) Ltd. v. UOI : 2007 (210) E.L.T. 3 (S.C.).
ii. Jaiprakash Industries Ltd. v. CCE : 2002 (146) E.L.T. 481 (S.C.).
iii. Padmini Products v. CCE : 1989 (43) E.L.T. 195 (S.C.).
iv. CCE v. Surat Textile Mills Ltd : 2004 (167) E.L.T. 379 (S.C.).
v. UOI v. Sonnenflex Abrasives (P) Ltd : 2016 (343) E.L.T. 57 (Bom.).
4. On the other hand the learned AR defended the impugned order and submitted that the appellants were using the brand name of another party Shri Lakshmi Industries, Coimbatore which is a very popular brand and therefore the appellants are not entitled to SSI exemption. In support of his submission, he relied upon the following decisions:-
i. CCE, Trichy v. Grasim Industries Ltd : 2005 (183) E.L.T. 123 (S.C.).
ii. CCE, Chandigarh-I v. Mahaan Dairies : 2004 (166) E.L.T. 23 (S.C.).
iii. CCE, Delhi v. Ace Auto Comp. Ltd : 2011 (263) E.L.T. 3 (S.C.).
iv. CCE, Chandigarh-II v. Bhalla Enterprises : 2004 (173) E.L.T. 225 (S.C.).
v. CCE, Trichy v. Rukmani Pakkwell Traders : 2004 (165) E.L.T. 481 (S.C.).
We have considered the submissions of both the parties and perused material on record. We have also gone through the various decisions relied upon by both the parties. We find that the same Commissioner (Appeals) in the appellant's own case for the subsequent period i.e. September, 2005 to July, 2006 involving an identical issue has been decided in favour of the appellant by holding that the appellants have not used the brand name of Sri Lakshmi Industries, Coimbatore and both are different and the appellants are entitled for SSI exemption. We further note that for the subsequent period, the learned Commissioner has examined the various materials produced before him namely, the labels of the product and the logo and the other details printed on the logo and he has come to the conclusion that the said details distinguish appellant's product from any other manufacturer. The learned Commissioner has also relied upon the decision in the case of Grasim Industries Ltd. and other decisions which have now been relied upon by the Revenue to come to the conclusion that the appellants are entitled for SSI benefit as they have not used the same brand name belonging to another company. Besides, we also find that the subsequent decision of the Commissioner has been accepted by the Department appeal has not been filed. Therefore in view of the decision of the Hon'ble Supreme Court in the case of Marsons Fan Industries (supra) wherein it has been held that for the same assessee, a subsequent order of the same Collector holding goods as non-excisable, attained finality as Department has accepted the said decision, hence the impugned order of the Tribunal confirming earlier order holding differently set aside. Further, we also find that the same Commissioner in respect of the another unit using the same name has taken a view that there is a difference in the nature of logo and the word "Lakshmi" which was used by the assessee and held by Order dated 24-4-2008 that the assessee is entitled for SSI exemption as they are not used brand name or trade name of another. In view of our discussion above, we are of the considered view that in view of the facts and circumstances and the evidence on record, impugned order is not sustainable in law and therefore, we set aside the same by allowing the appeals of the appellants with consequential reliefs, if any