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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RAJU
Bell Products Company - Appellant
Versus
Union of India - Respondents
Writ Petition Nos. 9869 to 9871 of 1994
Decided On : 11 January 1995
EXCISE - Exemption - Brand name or trade name of another person - Notification No. 59/94-C.E., dated 1-3-1994 - Validity - Petitioners using brand name 'BELL' for their products - Whether entitled to exemption - Held, no - Petitioners using brand name of another person - Not entitled to exemption.
Fact of the Case:
Petitioners, manufacturers of paper pins, staples, and safety pins, used the brand name 'BELL' for their products. The Central Excise Department denied them exemption from excise duty under Notification No. 1/93, as amended by Notification No. 59/94-C.E., dated 1-3-1994, on the ground that they were using the brand name of another person. The petitioners challenged the validity of the amended notification and claimed entitlement to the exemption.
Finding of the Court:
The court held that the amended notification was constitutionally valid and enforceable. It also held that the petitioners were using the brand name of another person, namely, Mr. A. Chelladurai, one of the partners of the BELL Products Company, and were therefore not entitled to the exemption.
Issues: 1. Whether the amended notification was constitutionally valid and enforceable. 2. Whether the petitioners were using the brand name of another person.
Ratio Decidendi: 1. The court held that the amended notification was constitutionally valid and enforceable, relying on the decision in W.P. Nos. 8825 to 8832 of 1994 [reported in 1995 (76) ELT 265 (Mad.)]. 2. The court held that the petitioners were using the brand name of another person, namely, Mr. A. Chelladurai, one of the partners of the BELL Products Company. The court noted that the petitioners were all located at the BELL Industrial Complex in Tirunelveli and that they used the common brand name 'BELL' for their products, sometimes with the letters and sometimes with the mark of the 'BELL'. The court also noted that the petitioners were all members of the same family and that more than one of the family members held interest in all three firms.
Final Decision: The court dismissed the writ petitions.
These Writ Petitions may be dealt with together since they involve common issues for consideration and counsel appearing on either side also made submissions in common. These Writ Petitions have been filed for the following identical relief: -
"Writ of Certiorarified Mandamus calling for the records comprised in the impugned Notification No. 59/94-C.E., dated 1-3-1994 issued by the first respondent and quash the paragraph 4 of the said Notification dated 1-3-1994 and consequently directing the respondents to grant exemption to the petitioner under Notification No. 175/86-Central Excise as amended by Notification No. 1/93, dated 28-2-1993."
2.The petitioner in W.P. No. 9869/94 claims to be a partner of the petitioner-firm carrying on business in the manufacture and sale of paper pins made of steel and brass falling under Chapter and Heading 7319.00 and 7415.29 respectively and paper clips made of steel falling under Chapter 8305.00 of the Schedule to the Central Excise Tariff Act, 1985, since 1952 onwards. The goods manufactured are said to be marketed under the brand name 'BELL' (with Emblem) duly registered with the Registrar of Trade Marks since 1959 (3-3-1959) in respect of pins and clips for paper which are meant for office use. The said items are said to fall under Class 16 of the IV Schedule to the Trade and Merchandise Marks Act, 1958. The Registeration Certificate is said to be periodically renewed till date, as a consequence of which the petitioner-firm is said to have become the exclusive owner of 'BELL' trade mark (with emblem) in respect of their goods pins and clips for paper only.
(b) It is further stated that the said business was started in the year 1952 by Mr. A. Chelladurai as a Proprietary concern and as the family grew, the sons of the proprietor were added as partners subsequently. It is also claimed that the petitioner-firm is a Small Scale Industry recognised by the Department of Industries and Commerce having a permanent Certificate bearing No. 18 : 14 : 00075 : PMT : SSI. Till 31-3-1994, it is stated that the petitioner-firm has been availing the exemption extended to the Small Scale Industries. As a consequence of which the petitioner-firm is not obliged to pay any excise duty upto a clearance of Rs. 30 lakhs by virtue of Notification No. 175/86 as amended by notification 1/93, dated 28-2-1993. Paragraph 4 of the Notification dated 28-2-1993 provided for denying the exemption where a manufacturer of goods affixes the specified goods with a brand name or trade name registered of another person who is not eligible for the grant of exemption under the notification. By virtue of the subsequent amendment by Notification No. 59/94-C.E., dated 1-3-1994, a new paragraph 4 was substituted in the place of the old paragraph 4 in the following terms:-
"The exemptions contained in this Notification shall not apply to the specified goods bearing a 'brand name or trade name (registered or not) of another person."
It is claimed that the third respondent in this Writ Petition called upon the petitioner to pay excise duty in view of the Notification No. 1/93 as amended since brand name 'BELL' refers to a group of people. It is stated that registered trade mark certificate stands in the name of the petitioner-firm represented by one of its partner A. Chelladurai, founder of the business and it cannot therefore, be stated that the petitioner has been using the brand name 'BELL' which belong to a group of people.
3.W.P. No. 9870 of 1994 was filed by the petitioner therein, carrying on business in the manufacture and sale of 'Staples' made of steel falling under Chapter and Heading 8305.00 of the Schedule to the Central Excise Tariff Act, 1985 since 1972, and marketing the goods under the brand name 'BELL' (only by letters, without emblem) since 1972. It is stated that this brand name was not registered by the petitioner. The petitioner appears to commence business in the year 1972 as a partnership firm with its ow
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