Per Smt. Archana Wadhwa :

As both the appeals are against the same and common impugned Order passed by the Commissioner of Central Excise, Calcutta-I, the captioned two appeals are being disposed of by a single Order. Briefly stated the facts of the case are as under:-

1.1. The first appellant firm namely M/s. Emkay Investments Private Limited, is engaged in the manufacture of plywood classifiable under Sub-Heading: 4408.90 of the Schedule Act, 1985. The appellants' factory was visited by the Central Excise Officers who found that the appellants are also using the brand/logo - 'MERINO' - along with the brand-name - "Pelican" - on the plywood being manufactured by them. As such the Officers entertained a view that as the logo of "MERINO" is also being shown on the plywood being manufactured by them, apart from their own logo of "Pelican" and as the owner of the brand, "MERINO" i.e. M/s. Merinoply and Chemicals Ltd., is a large-scale manufacturer of plywood not entitled to the benefit of small-scale exemption Notification No. 175/86-CE dated 1.3.86, as amended, the appellants were also not entitled to the benefit of the said exemption Notification in view of para 7 of the same. Accordingly, seizure of 738 pieces of commercial plywood was effected by the Officers on 9.3.91. The Officers also visited the premises of the purchasers of the said plywood and seized the material found in their premises. The second appellant firm, M/s. Plyking is one of the traders from whose premises plywood valued at Rs. 3847.72 was seized by the Officers.

1.2. On adjudication, the Commissioner of Central Excise, Calcutta-I vide his impugned Order held that the logo indicating "MERINO" in a specific manner was the brand-name used by M/s. Merinoply and Chemicals Ltd. who were not eligible for the grant of benefit of Notification No. 175/86 and as such, denied the benefit to the first appellant firm and accordingly, confiscated the seized plywood totally valued at Rs. 34,849.59 and appropriated an amount of Rs. 3659.20 towards the duty, Rs. 9,340.80 towards the redemption fine and Rs. 10,000.00 towards the penalty from the Cash Security given by the appellants at the time of provisional release of the goods.

1.3. He also confiscated 223 pieces of plywood totally valued at Rs. 13,509.80 seized from the business premises of M/s. Plyking and ordered appropriation of Rs. 1,172.28 towards the Central Excise Duty of Rs. 3,827.72 towards fine and Rs. 4,000.00 towards the penalty, from the cash security given by the appellant firm at the time of provisional release of the goods.

2. We have heard Shri Prantosh Mookherjee, learned Advocate for the appellants and Shri T. Premkumar, learned S.D.R. for the Revenue in the first case i.e. E-246/92 and Shri R.K. Roy, learned J.D.R. in the second case i.e. E-279/92.

3. The dispute in the instant cases is as to whether the appellants who are manufacturers of plywood under their own brand-name, M/s. Pelican have made themselves disentitled to the benefit of small-scale exemption Notification No. 175/86 by using a logo indicating - "MERINO" - on their products along with their brand-name. It has been the appellants' case that though the word - "MERINO" - is written in the same style as written on the plywood manufactured by M/s. Merinoply and Chemicals Ltd., nevertheless the same will not imply any relation of goods by the appellants under the brand-name of "MERINO". They submitted that the brand-name of M/s. Merinoply and Chemicals Ltd. is "TUFFPLY" and "MERINO". They have argued that the learned Commissioner in para 9.3.7 of the impugned Order has denied them the benefit of the said Notification on the ground that they have written the word - "MERINO" - on their own product, regardless of the fact that such product was affixed also with the brand-name of the S.S.I. manufacturer, the said company in this case.

4. The Departmental Representatives have countered the arguments of the appellants by arguing that "MERINO" is the