Per Lajja Ram :

The issue referred to the Larger Bench for consideration is, whether the benefit of small scale exemption under exemption Notification No. 175/86-CE dated 1.3.1986, as amended by Notification No. 223/87-CE dated 22.9.1987, and subsequent exemption Notification No. 1/93-CE dated 28.2.1993 was available in terms of para 7 of Notification No. 175/86-CE and para 4 of Notification No. 1/93-CE when the specified excisable goods were affixed with a brand name or trade name of a person who was not Indian, or the brand name or trade name of a person who was not a manufacturer.

2. Under Stay Order No. 126/95 dated 12.7.1995 in the case of Sharp Business Machines (P) Ltd. Vs. CCE, Bangalore, 1995 (61) ECR 637 (Tribunal), the South Regional Bench at Madras while disposing of the Stay Applications had referred the matter to the Hon'ble President for constituting a Larger Bench for the purpose of deciding whether the benefit of small scale exemption under Notification No. 1/93-CE dated 28.2.1993 was available to a manufacturer who was affixing his goods with the brand name of a foreign manufacturer.

M/s. Sharp Business Machines Pvt. Ltd. were engaged in the manufacture of plain paper copier and were affixing them with the brand names 'Canon', 'Richo' and 'Nashua' which belonged to foreign manufacturers. Under Notification No. 1/93-CE the exemption contained in that notification was not available to the specified goods bearing a brand name or trade name (registered or not) of another person. In the show cause notices dated 21.10.1993 and dated 24.12.1993, it was alleged that the Canon, Richo and Nashua brand plain paper copiers manufactured and cleared by M/s. Sharp Business Machines were not eligible for small scale exemption under Notification No. 1/93-CE, as these brand names were owned by foreign companies who were not eligible for the exemption under the relevant exemption notification applicable to small scale units - Notification No. 1/93-CE. Both the show cause notices were adjudicated by the Asstt. Collector of Central Excise, Bangalore, who under his common order-in-original dated 28.2.1994 observed that admittedly the brand names 'Canon' 'Richo' and 'Nashua' were popular brand names of Japanese companies and that the provisions of Notification No. 1/93-CE were not applicable to a foreign company. As long as the brand name owner whether in India or outside India was not eligible for the benefit under Notification No. 1/93-CE; the user of the said brand name was also not entitled for the benefit of small scale exemption under the aforesaid exemption notification and that it was immaterial whether such brand name owner was in India or was outside India. He held that the assessee were not eligible for the benefit of Notification No. 1/93-CE in respect of the goods affixed with the brand names of foreign companies 'Canon' 'Richo' and 'Nashua'. On appeal, the Collector of Central Excise (Appeals), Bangalore, under his order-in-appeal dated 22.12.1994 confirmed the view taken by the adjudicating authority.

When the matter came up before the South Regional Bench of the Tribunal at Madras for disposal of the stay applications, relying upon an earlier stay order dated 17.8.1992 in the case of FOSROC Chemicals India Ltd. Vs. CCE, 1993 (65) ELT 119 (T), the Bench referred the matter to the Hon'ble President for constituting a Larger Bench.

In the case of FOSROC Chemicals India Ltd. Vs. CCE, 1993 (65) ELT 119 (T), the appellants were engaged in the manufacture of construction and mining chemicals, and were affixing their goods with the brand name 'FOSROC' which was the brand name of a foreign manufacturer in United Kingdom. The benefit of exemption Notification No. 175/86-CE had been denied to the appellants on the ground that the brand name 'FOSROC' used by them was the brand name of an ineligible person - manufacturer in U.K. While disposing of the stay application filed by the appellants, the Bench took note of their earlie