Per K.K. Bhatia :

The Eastern Bench, Calcutta have referred this matter to the Larger Bench. The brief facts are that the appellants manufactured HDPE Sacks solely for the supply to M/s. Orissa Cement Limited, Bhubaneswar. They were availing the benefit of exemption under Notification No. 175/86-CE, dated 1.3.86 as a SSI Unit. It was found that they were printing the brand name of the buyer on the bags. The issue referred to Larger Bench for consideration is, whether the benefit of small scale exemption under Notification No. 175/86, dated 1.3.86 was available in terms of para 7 of this notification when the sacks were affixed with the brand name of the buyers who packed and sold cement in them. A reference is made to the CEGAT decision in CCE Vs. Wood's Galmour 1991 (54) ELT 153 (Tribunal). In this case the assessee manufactured T.V. Cabinets and affixed on them the brand name "Konark" of the buyers of cabinets. The Tribunal held in the stated decision that the manufacturers of TV Cabinets affixed the brand name of the manufacturers of "Konark" T.V. on the cabinets and therefore, they were not eligible for exemption under the said notification. The referral Bench has observed that certain aspects of the issue argued before them were not brought to the notice of the two Member Bench which decided the earlier case. Therefore, they have referred the appeal to the Larger Bench where the correctness of the earlier decision can be canvassed. When the matter was called, none was present for the appellants despite the notice. They have however, sent a communication dated 28.4.2000 through M/s. R.S.B. & Co., Calcutta which apart from containing their written arguments, also states that they are a proprietorship concern and are saddled with financial constraints. They requested that hearing may be held at Calcutta. This matter is required to be heard by a three members' Bench. Obviously the request of the party to fix the hearing at Calcutta cannot be acceded to. We have, therefore, heard Dr. Ravindra Babu, JDR for the Revenue and the Interveners Shri A.R. Madhav Rao and Shri M.P. Devnath, Advocates.

2. The relevant portion of Para 7 of Notification No. 175/86 provided that 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. In the Explanation VII of the notification, "Brand Name" or "Trade Name" are defined to mean a name or a mark, such as a symbol, monogram, label, signatures or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.

3. The instructions contained in the Central Board of Excise and Customs, letter F.No. 345/35/87-TRU, dated 29.10.87 have been brought to our notice in which with reference to the above provisions it is clarified that names/logos of the brand name owner printed on metal labels, crown corks, P.P. caps and collapsible tubes are not brand name by themselves and as long as these metal labels are not affixed on the goods in the trade of which the name/logo printed on such metal labels etc. serves as brand name (within the definition of Explanation VII) they are not hit by the mischief of para 7 of the notification. This position is further reiterated specifically with reference to the dutiability of packing materials like metal containers, HDP woven sacks etc. manufactured in the SSI Unit in the Board instructions issued under F.No. 213/28/87 CX 6, dated 27.11.87.

4. Further, reference is made to the Board's Circular No. 71/71/94-CX, dated 27.10.94 (From F.No. 341/45/95-TRU) in which with reference to paragraph 4 of Notification No. 1/93 (same as paragraph