Per P.G. Chacko :

We have before us the following two issues referred by the 'B' Bench as per Misc. Order No. 23/2002-B, dated 4-3-2002 in the captioned appeals:-

(a) Whether the benefit of small scale exemption is available to a manufacturer who is manufacturing and clearing excisable goods bearing Brand name/Trade name similar to the Brand name belonging to another person?

(b) Whether the benefit of small scale exemption is deniable to a manufacturer, using Brand name/Trade name of another person, only when the excisable goods manufactured by him are same goods as being manufactured or dealt with by the persons owning the Brand name/Trade name?

2. The respondents in Appeal No. E/2383/2001, M/s Fine Industries, were engaged in the manufacture and clearance of Diesel Engine parts (CET sub-heading 8409.00). During 1994-95 to 1997-98 (up to 17-10-1997), they manufactured and cleared without payment of duty Diesel Engine parts namely Rocker Box, Rocker Box with Lever and Fuel Pump Bracket under the brand name 'BHALLA FINE' as also Lubricating Pumps under the brand name 'BHALLA'. The brand name 'BHALLA' belonged to M/s. United Foundry and Engineering Works who had got the brand name registered in their favour under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Trade Marks Act) in respect of Lubricating Pumps long before the above period. The Department by show-cause notice dated 31-3-1999 proposed to recover duty of excise on the above clearances by invoking the extended period of limitation, alleging that M/s. Fine Industries were not eligible for the SSI exemption under Notification Nos. 1/93-C.E. (as amended) and 16/97-C.E. on account of the bar contained in Paragraph 4 of Notification No. 1/93 and the corresponding provision of Notification No. 16/97. The show cause notice was contested by the party. The Adjudicating Authority ruled out the applicability of Para 4 ibid and allowed the benefit of SSI exemption to the assessee in respect of Diesel Engine Parts cleared under 'BHALLA FINE' brand name by taking the view that the said brand name was different from 'BHALLA' brand name of M/s. United Foundry and Engineering Works and that the assessee's goods affixed with the former brand name were different from the goods (Lubricating Pumps) in respect of which the latter brand name stood registered in favour of M/s. United Foundry Engg. Works (UFEW). However, the Adjudicating Authority held that the assessee was not eligible for SSI exemption in respect of the lubricating pumps cleared by them under 'BHALLA' brand name, on the ground that this brand name belonged to another person (M/s. UFEW) and, therefore, the bar contained in para ibid was applicable. The appeal preferred by the Department against the decision of the Original Authority was rejected by the Commissioner (Appeals) who affirmed the said decision and held that the benefit of exemption under the notification was available to the assessee in respect of the Diesel Engine parts cleared under "BHALLA FINE" brand name during the material period. Hence the appeal of the Revenue before the Tribunal.

3. The respondents in Appeal No. 2272/2001, M/s. Sputnik Switch Gears Pvt. Ltd., manufactured 'electrical apparatus for protecting electrical circuits for voltage not exceeding 1000 Volts' (falling under Chapter 85 of the Schedule to the CETA) and cleared the same without payment of duty under the brand name 'Sputnik' which belonged to M/s. Sarvjit Electric Works during 1994-95. To be precise, the goods so cleared were Miniature Circuit Breakers (MCBs). The Department by show cause notice dated 4-6-1998 raised a demand of duty on the respondents for the said period alleging that they were not eligible for SSI exemption in respect of the MCBs under Notification No. 1/93-C.E. (as amended) on account of the bar of para 4 thereof. The original authority accepted the Department's view and confirmed the demand of duty but the lower Appellate authority set a