V.P. Gulati, Member (T)

1. This is an appeal against the order of the Additional Collector of Central Excise, Madras. The brief facts of the case are that the appellants manufacture quartz wall clocks allegedly bearing the brand name 'Master Piece'. They had cleared the goods without payment of duty in terms of Notification No. 175/86. The Central Excise authorities, however, found that another manufacturer namely M/s. Doshi Electronics were also manufacturing watches with the brand name 'Master Piece'. Proceedings were drawn against the appellants for the reason that they were not eligible for the benefit of Notification No. 175/86 in view of para 7 of the said Notification which for convenience of reference is reproduced below :-

"7. 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 :

Provided that nothing contained in this paragraph shall be applicable in respect of the specified goods cleared for home consumption before the 1st day of October, 1987."

The appellants, however, contended before the lower authority that the brand name of their product was 'Master Piece Regulator' and not 'Master Piece' and, therefore, they should not be taken to be using the brand name of another manufacturer. They also contended that even otherwise, the appellants were manufacturing wall clocks which fell under Tariff Heading 9105.00, a heading specified for the benefit of the said notification, while the wrist watches fell under Tariff Heading 9102.00, a heading which was excluded from the purview of the benefit and that in this view of the matter, use of the brand name of another manufacturer of non-specified goods would not disentitle them from the benefit of the notification. The lower authority, however, did not accept the appellants' pleas and after taking note of the investigation done in regard to the brand name used, held that the appellants were in fact manufacturing quartz clocks with the brand name 'Master Piece' and held that inasmuch as in terms of para 7 of the said Notification the appellants had used the brand name of another manufacturer who was not eligible for the benefit of the notification, the appellants were required to pay duty in respect of the quartz clocks with the said brand name cleared by them and longer time limit was invoked for demanding duty of Rs. 76,050.55 and penalty of Rs. 5,000/- was also levied on the petitioner.

2. The learned Consultant for the appellants submitted that while the appellants manufactured wall clocks, the manufacturer who owns the brand name 'Master Piece' manufactured wrist watches, a different category of goods. He submitted that both the items fell under different tariff headings namely, 9105.00 and 9102.00 respectively. He pleaded that while tariff heading 9105.00 covering wall clocks was a specified heading for the purpose of availing the benefit of Notification No. 175/86, wrist watches falling under 9102.00 were, by a specific mention excluded from the purview of the benefit of the Notification. He pleaded that the brand name used in the context of non-specified goods could not disentitle the appellants from the benefit of the Notification No. 175/86 by virtue of para 7 of the said Notification (reproduced earlier). In this connection he referred to Explanation VIII to the said Notification by which 'brand name' and 'trade name' have been defined for the purpose of the said Notification which for convenience of reference is reproduced below :-

"Explanation VIII. - "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 for the purpose of indicating, or so as to indicate