Availability of SSI benefit

PJ/Case Laws/2011-12/1484

Case: COMMISSIONER OF C. EX., AHMEDABAD-I versus ABHISHEK PHARMA ENGINEERS

Citation: 2011 (274) E.L.T. 524 (Tri - Ahmd.)

Issue:- Availment of SSI benefit - use of brand names not specifically owned by anyone – benefit cannot be denied unless connection established between trade name and person with whom it is identified.

Brief Facts:- The respondents are engaged in manufacture of Pharmaceutical machinery under the name 'Amba' and 'Ambalica'. The respondents were availing benefit of SSI exemption notification. Revenue entertained a view that the names 'Amba' and 'Ambalica' being used by the respondents are the brand names owned by M/s. Amba Engineers and M/s. Ambalica Engineers. As such, the respondents are not entitled to avail exemption Notification No. 8/2000, 8/2001, 8/2002, 8/2003, inasmuch as they were using brand name and trade name of another person. Shri Ramanbhai J. Mewada of the respondent company, in his statement dated 16-10-2003, deposed that they are affixing the names 'Amba' and 'Ambalica' on their product as the same are famous in market.

Appellant’s Contention:- It was contended by the respondents that the names 'Amba' and 'Ambalica' signify the names of Hindu Goddess and large number of manufacturers and traders are using the same. The allegation of the Revenue that the name 'Amba' is owned by M/s. Amba Engineers and 'Ambalica' is owned by M/s. Ambalica Engineers is without any evidence on record. They also submitted that similar cases were booked by the officers against many other manufacturing units including M/s. Amba Engineers and M/s. Arnbalica Engineers. Cases were adjudicated by Additional Commissioner; vide Order dated 26-10-2004. The adjudicating authority observed that M/s. Amba Engineers are not the owner or exclusive user of the brand name 'Amba'. By taking note of around 15 such units located in Gujarat, which were using brand name 'Amba', he observed that 'Amba' or 'Arnbalica' is the brand name available in the market and is being used by number of parties, without the same being owned by any specific unit. As such, he concluded that it was not that the M/s. Amba Engineers were the exclusive user of the word 'Amba' or 'Amba' is the brand name of any particular person.

Reasoning of Judgment:- Revenue in their memo of appeal, have simply reiterated the name 'Amba' and 'Ambalica' are owned by M/s. Amba Engineers and M/s. Ambalica Engineers. They have not rebutted the findings of Commissioner (Appeals) that earlier order of the Additional Commissioner, dealing with an identical issue, has not been appealed against by Revenue and has attained finality. Revenue has also not advanced any reasons to answer the finding of the Commissioner (Appeals) that 'Amba' and 'Ambalica' are common names being used in the industry, without any specific person owning the same, in which case the Board's circular would apply. The said circular of the Board is to the effect that for denying the benefit of SSI notification, it is necessary that the trade name must indicate a connection in the use of trade between such specific goods and same person using such names or mark with or without any indication or identity of that per-son. Unless the connection between trade name and the person, with whom that trade name is to be identified, is established, the requirement of brand name or trade name as provided for in the notification will not be satisfied. It is further observed in the said circular that in respect of lock, units making lock are bearing the same name or mark even though there is no person claiming the ownership with mark or name. Such names do not belong to any particular manufacturer and any unit is free to use the same. Any unit using such free names cannot be denied the benefit of notification.

The above Board's circular can be fairly applied to the facts of the present case inasmuch as the earlier order of Additional Commissioner had clearly held that the brand name 'Amba' is not being used by M/s. Amba Engineers as their owner.

As such, Tribunal found no reason to interfere in the impugned order of Commissioner (Appeals).

Decision:- Appeal rejected.

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PJ/Case Laws/2011-12/1484

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