Holding

Markings on jute bags that are compulsorily affixed for identification under law do not constitute a "brand name" within the meaning of the Central Excise Act, and therefore the exemption applies.

Summary

M/S RDB Textiles Ltd. manufactured jute bags for the Food Corporation of India, state governments and other agencies for use in the Public Distribution System. The Central Excise authorities denied exemption under Notification 30/2004, claiming that the bags bore a "brand name" because they displayed the buyer's name, logo and other details. The appellants contended that these markings were mandatory under the Jute Packaging Materials Act, the Essential Commodities Act and the Jute Control Order, and were solely for identification, not for creating a brand connection. The Supreme Court examined the definition of "brand name" under the Central Excise Act and held that a brand name must indicate a commercial connection between the product and a person, which was absent here. It further ruled that the Ministry of Finance circular clarifying that mere printing of an institution's name does not create a brand name is binding on the Excise Department. Consequently, the Court allowed the appeal, granting the exemption to the appellants.

Issues considered

The meaning of "brand name" under Notification 30/2004 of the Central Excise Act and whether the markings on jute bags constitute a brand name.
Whether mandatory markings required by the Jute Packaging Materials Act and related orders amount to a brand name for excise duty purposes.
The binding effect of Ministry of Finance circulars on the Central Excise Department.
The applicability of the exemption under Notification 12/2011-CE in view of the alleged brand name.

Legislation cited

Subjects

Central Excise dutybrand name definitionexemption notificationjute bagsPublic Distribution SystemMinistry of Finance circularCESTATJute Packaging Materials ActEssential Commodities ActJute Control Order

Judgment

[2018] 1 S.C.R. 1007 1007

M/S. RDB TEXTILES LTD. A
v.
COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX,
KOLKATA-IV COMMISSIONERATE
(Civil Appeal No. 8534 of 2015) B
FEBRUARY 13, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Central Excise Act, 1944 – Exemption Notification no.12/
2011-CE dated 1.3.2011 and Notification no.30/2004 dated
C
9.7.2004 – Brand name of another unit – Jute bags manufactured
by appellants and supplied to the PSUs, various State Governments
and Governmental agencies for use in packing of foods grains sold
through the PDS – Exemption under Notification no.30/2004 dated
9.7.2004 denied on the ground that affixing the name, logo and
particulars of buyers like FCI and the State Governments amounted D
to affixing on the jute bags a “brand name” – Held: In the instant
case, what was in fact affixed to the jute bags was the name of the
procurer agency in question such as the FCI, the State Government
of Punjab and so on, the crop year, the name of the jute mill
concerned, its BIS certification number and the statement that the
E
food grains are manufactured in India – Such markings were made
under compulsion of law, which are meant for identification,
monitoring and control by Governmental agencies involved in the
PDS – Such markings do not enhance the value of the jute bags in
any manner nor is it the intention of the appellants to so enhance
the value of jute bags, which is necessary if excise duty is to be F
imposed – Markings on the jute bags are not for the purpose of
indicating a connection in the course of trade between the jute bag
and some person using such name or mark – This being the case, it
is obvious that there is no “brand name” involved in the facts of the
instant cases – Appellant was entitled to the benefit of exemption –
G
Jute Packaging Materials (Compulsory Use in Packing
Commodities) Act, 1987 – Essential Commodities Act, 1955 – Jute
and Jute Textiles Control Order, 2000 – Notification no.12/2011-
CE dated 1.3.2011 – Notification no.30/2004 dated 9.7.2004.

H
1007
1008 SUPREME COURT REPORTS [2018] 1 S.C.R.

A Circulars/Government Orders/Notification: Circulars –
Binding effect of – Held: The circulars that are issued by the Ministry
of Finance are binding on the Department of Central Excise.
Allowing the appeals, the Court
HELD: 1. A reading of letter dated 18.3.2011 written by
B the Jute Commissioner to the Commissioner (Central Excise)
and circular dated 21.6.2011 issued by the Ministry of Finance
would show that merely because the name of an institution is
printed or embroidered on articles would not mean that they
would become branded products. A brand name, in addition to
C the name or logo, would have to be given in order to attract excise
duty. Also, mere affixing of the name of a manufacturer would
not constitute a brand name. [Para 12] [1016-D-E]
2.1 A typical requisition order issued by the Directorate of
Supplies and Disposals required the emblem of the purchaser
D and excise duty payable by the purchaser to be printed on the
jute bags manufactured by the appellants. [Para 13] [1016-F]
2.2 A typical supply order placed by the Jute Commissioner
also required, as a matter of law, that the purchaser’s name be
put together with the name of the manufacturer’s mill as well as
E the BIS certification for purposes of identification of the jute bags
to be used in the PDS. [Para 13] [1017-A]
3. In the instant case, what was in fact affixed to the jute
bags was the name of the procurer agency in question such as
the FCI, the State Government of Punjab and so on, the crop
F year, the name of the jute mill concerned, its BIS certification
number and the statement that the food grains are manufactured
in India. It is clear that all these markings have, on the pain of
penalty, to be done by the manufacturers of the jute bags, given
the Jute Control Order and the requisition orders made
thereunder. Obviously, such markings are made by compulsion
G of law, which are meant for identification, monitoring and control
by Governmental agencies involved in the PDS. Neither do such
markings enhance the value of the jute bags in any manner nor is
it the intention of the appellants to so enhance the value of jute
bags, which is necessary if excise duty is to be imposed. This
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EXCISE AND SERVICE TAX, KOLKATA-IV

flows from the expression “…for the purpose of indicating, or so A
as to indicate, a connection in the course of trade between the
product and some person using such name or mark…”. In the
present case, the markings on the jute bags are not for the
purpose of indicating a connection in the course of trade between
the jute bag and some person using such name or mark. The
B
markings are by compulsion of law only in order that
Governmental authorities involved in the PDS may identify and
segregate the aforesaid jute bags. This being the case, it is obvious
that there is no “brand name” involved in the facts of the present
cases. [Para 18] [1020-F-H; 1021-A-B]
Kohinoor Elastics (P) Ltd. v. CCE (2005) 7 SCC 528 – C
distinguished.
CCE v. Stangen Immuno Diagnostics [2015] 4 SCR
528 : (2015) 11 SCC 761 ; CCE v. Sanghi Threads
(2015) 14 SCC 701 – relied on.
D
4. The circulars that are issued by the Ministry of Finance
are binding on the department of Central Excise. [Para 19] [1021-
B]
CIT v. Trans Asian Shipping Services (P) Ltd. [2016] 3
SCR 337 : (2016) 8 SCC 604 – relied on. E
Case Law Reference
(2005) 7 SCC 528 distinguished Para 4
[2015] 4 SCR 528 relied on Para 17
(2015) 14 SCC 701 relied on Para 17 F
[2016] 3 SCR 337 relied on Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8534
of 2015.
From the Order dated 30.06.2015 of the Customs, Excise and
Service Tax Appellate Tribunal, East Zonal Branch, Kolkata in Appeal G
No. Excise Appeal – 75676 of 2014
WITH
C. A. Nos. 8703, 8725-8726, 8769, 8565, 9153, 8894-8895, 8896-
8897, 13331, 9242-9243, 9087, 9249, 9144, 8885-8886, 8890-8891, 13330,
8706, 8743, 9146-9147, 8759-8760 of 2015. H
1010 SUPREME COURT REPORTS [2018] 1 S.C.R.

A S. K. Bagaria, Niraj Kishan Kaun, Sr. Adv, Amit Agarwalla,
Saurav Agarwal, Sourabh Bagaria, Kapil Rustagi, Ajit Singh, Sanyat
Lodha, Vivek B., Ms. Aakriti Dawar, Sushal Tewari, T. R. B. Sivakumar,
Adv for the Appellant.

K. Radhakrishnan, Sr. Adv, Rupesh Kumar, Ms. Nisha Bagchi,
B Ms. Sunita Rani Singh, Ms. Pooja Sharma and B. Krishna Prasad, Advs
for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. The present appeals arise out of a
C
judgment dated 30.6.2015, passed by the Customs, Excise and Service
Tax Appellate Tribunal (CESTAT), in which the CESTAT has denied
exemption under excise notifications, referred to hereinafter, in respect
of jute bags manufactured by the appellants and supplied to the Food
Corporation of India (FCI), various State Governments and Governmental
D agencies for use in packing of food grains sold through the Public
Distribution System (PDS). The said exemption has been denied for a
period of two years by holding that affixing the name, logo and particulars
of buyers like the FCI and State Governments amounts to affixing on
the jute bags a “brand name”.
E 2. In exercise of powers conferred by Section 3(1) of the Jute
Packaging Materials (Compulsory Use in Packing Commodities) Act,
1987 (hereinafter referred to as the “Jute Act”), the Central Government
has issued orders, from time to time, directing the minimum percentage
of food grains required to be packed, from raw jute produced in India, in
F jute bags manufactured in India to protect the jute industry.

3. At the same time, in exercise of powers conferred by Section 3
of the Essential Commodities Act, 1955, the Central Government has
made the Jute and Jute Textiles Control Order, 2000. In exercise of
powers conferred by the Jute & Jute Textiles Control Order, the Jute
G Commissioner issues specific orders, from time to time, to jute mills
requiring them to produce specified categories and stated quantities of
jute bags, to sell the same to such persons as may be specified by the
Director (Supplies and Disposals), who issues requisition orders, wherein
the names of the persons to whom supply is to take place, prices of jute
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bags and other particulars are given. Such prices are exclusive of excise A
duty. The aforesaid requisition orders are then followed by the issuance
of supply orders wherein, inter alia, further details of the prices, delivery
period, terms of delivery and markings are mentioned.

4. Shri S.K. Bagaria and Shri Neeraj Kaul, learned senior counsel
appearing on behalf of the appellants, referred us to the demands that B
have been made based, on the amended exemption notifications, and
have painstakingly taken us through the record, including the
Commissioner’s order dated 7.3.2014 and the impugned judgment of the
CESTAT. According to learned counsel, the exemption that was granted
qua jute bags under the Central Excise Act, 1944 was lifted for a period C
of two years, from 1.3.2011 till 1.3.2013, only if goods which were
manufactured bore a brand name or were sold under a brand name. If
the definition of “brand name” is to be seen, according to learned counsel,
it will be clear that a “brand name” is a name or a mark which is used in
relation to a product for the purpose of indicating a connection in the
course of trade between the product and some person using such name D
or mark. According to learned counsel, using the name of the buyer/
procurer of food grains is obviously not a brand name that results in
indicating a connection in the course of trade between the jute bag and
the said buyer. They argued that the show cause notices proceeded on
the footing that using the name of the manufacturer and an emblem of E
the manufacturer resulted in the use of a brand name, but that the
CESTAT, realizing that this could not be so, founded its judgment on the
basis of using the name of the buyer/procurer of food grains and that
this would be beyond the show cause notices and also, therefore, the
CESTAT decision should be set aside. They also argued, relying upon
several judgments, that, in the present case, there is no “brand name”, F
as defined, at all, and that, therefore, the show cause notice, the
Commissioner’s order as well as the CESTAT’s order are all incorrect.
They further relied upon a letter dated 18.3.2011 and a Ministry of Finance
circular dated 21.6.2011 to buttress their submissions. According to
them, the Commissioner has not referred to these documents at all and G
the CESTAT merely brushes away the aforesaid documents, which go
to the root of these cases. They also cited decisions on how such circulars
are binding on the department. According to them, the CESTAT grossly
erred in relying heavily upon the judgment in Kohinoor Elastics (P)
Ltd. v. CCE, (2005) 7 SCC 528, as that judgment dealt with a specific
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1012 SUPREME COURT REPORTS [2018] 1 S.C.R.

A exemption notification and held that as a brand name was assumed to
have been used, on the facts of that case, no argument was addressed
as to whether the particular mark used was a brand name as defined.
Further, they said that the judgment was clearly distinguishable, in that,
in the exemption notification in that case, the brand name had to be used
by small scale units and could not be used by a third party, which was
B
found to be the case on the facts of that case. According to them,
therefore, the CESTAT was wholly incorrect in its finding that a “brand
name” had been used on the facts in these cases.

5. Shri Radhakrishnan, learned senior counsel appearing on behalf
C of the Revenue, has placed before us various Sections of the Jute Act
and Section 5A of the Central Excise Act. It is his submission that the
Jute Act cannot control Section 5A of the Central Excise Act and
exemption notifications issued thereunder. He went on to read the
definition of brand name and stated that there was no need to show that
a brand name was being used for monetary advantage, so long as it was,
D in fact, being used, which is clear on the facts of these cases. He then
argued that what was, in fact, printed on the jute bags, as per the buyer’s
specification, was, inter alia, the name of the manufacturer as well as
strips of different colours, thereby indicating that not only was the
manufacturer’s name disclosed, but that the colour strip would be a
E “mark”, leading to the fact that there is a “brand name” in these cases.
According to him, a literal interpretation of the definition of brand name
would show that the CESTAT is correct. Also, according to learned
counsel, the CESTAT correctly relied upon the judgment in Kohinoor
Elastics (supra) to arrive at a conclusion, based on the same definition
of brand name, that there is a name or mark used, in the facts of these
F cases, and which shows not only the manufacturer’s name, but the
buyer’s name or procurer’s name as well.

6. Before dealing with the facts of these cases in some detail, it is
important to first set out the exemption provided under Notification 30/
G 2004 dated 9.7.2004. This notification, issued under Section 5A of the
Central Excise Act, exempts excisable goods mentioned thereunder in
public interest. Item 16 of the aforesaid notification exempts all goods
falling within Central Excise Tariff Entry 63, except goods falling within
6307.10. The Central Excise Tariff, with which we are concerned, is

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6305, and in particular, 63051030 and 63051040, where the rate of duty A
is 10%. Thus, upto 1.3.2011, it is clear that all the goods mentioned in
Central Excise Tariff Entry 63 were exempt from payment of excise
duty. However, by notification 12/2011 dated 1.3.2011, Item 16 was
substituted, in which what was exempted was “all goods, other than
those bearing a brand name or sold under a brand name”.
B
7. Brand name, for the purpose of Chapter 63, is defined as follows:

“(iv). In relation to products of this Chapter, “brand name” means
a brand name, whether registered or not, that is to say, a name or
a mark, such as a symbol, monogram, label, signature or invented C
words or any writing which is used in relation to a product, for the
purpose of indicating, or so as to indicate, a connection in the
course of trade between the product and some person using such
name or mark with or without any indication of the identity of that
person.”
D
8. The aforesaid situation carried on for two years till 1.3.2013,
when notification No.11/2013 reinstated the previous entry, without
excepting goods bearing or sold under a brand name and, thus, reverted
to the position that existed between 2004 and 2011, which is that jute
bags, with or without brand names, were completely exempt from excise
E
duty.

9. The facts of Civil Appeal No.8534 of 2015 will now be referred
to. On 7.3.2011, pursuant to the amended notification of 1.3.2011, the
Superintendent (Central Excise) sent a notice to the appellant that as
they were selling goods which bore a brand name, excise duty, at the F
rate of 10%, would be imposed on the aforesaid goods.

10. A letter dated 18.3.2011 was then written, by the Jute
Commissioner to the Commissioner (Central Excise), in which it was
stated:
G
“2. It may be mentioned in this connection that jute mills print
certain items on jute bags as per the requirements of the buyers
and directions of the Jute Commissioner. The items printed on
jute bags and the reasons for such printing are stated below:
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1014 SUPREME COURT REPORTS [2018] 1 S.C.R.

A
S . No. Items P rinted Remarks

1. Mill’s Name As per Notification No.
S.O.698(E) dated
04.07.2002
B 2. “Manufactured in -Do-
India”

3. Buyer’s Name As per buy er’s requirement

4. Logo -Do-
C
5. Year of manufacture -Do-

6. BIS m ark wi th As per BIS rule
licence No.

D 3. The jute mills have to print the items on the bags as per the
requirements of the buyers and the Notification No. S.O. 698(E)
dated 04.07.2002 issued by the Jute Commissioner.
4. Reasons for printing the bags are given below:
Item no. 1&2.
E
The Notification No. S.O. 698(E) dated 04.07.2002 (copy
enclosed) issued by the Jute Commissioner is to distinguish between
Indian jute products and imported jute products and secure
compliance of the stipulation of the order issued under JPM Act,
1987. These orders, inter alia, stipulate that “percentage of total
F production of certain commodities or class or commodities required
to be packed in jute packaging material manufactured in India
from raw jute produced in India.” A copy of the latest order dated
27.08.2010 and JPM Act, 1987 are enclosed.
Item No.3 to 6.
G
These are printed on bags so that buyers can identify their products
and the year when food grains or other material is packed. If a
buyer prefers jute products as per BIS standard, jute mill has to
manufacture bags conforming to BIS standard and it is proved
BIS standard only when it is marked BIS with licence number.
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5. Thus jute bags printed with above items by jute mills are part of A
specifications and so where bearing any brand name of the mill
No. company, may not be treated as branded bags in the context of
ated levies of duties. By printing the items on bags, jute mills are not
getting any kind of extra mileage in promoting their products.
6. In view of the above, it is requested that the Notice dated B
08.03.2011 served by the Office of the Superintendents of Central
Excise under the Division of Kol-IV to various jute mills for
ment payment of 10% Adv. Duty may be withdrawn.”
11. This was followed by a circular dated 21.6.2011 issued by the
Ministry of Finance which stated: C
“Subject: Clarification on issues pertaining to the levy of
excise duty on branded readymade garments and made-up
articles of textiles–Regarding.
Board has received representations from trade and industry seeking
clarification on certain issues pertaining to the levy of excise duty D
on readymade garments/made–ups that either bear or are sold
under a brand name. These issues are:-
(i) Applicability of the mandatory levy of excise duty on school
uniforms, uniforms for private security guards, companies, hotels,
airlines etc. and made–ups such as linens, towels etc. bearing the E
name or logo of a hotel, restaurant or airlines etc; and
(ii) Applicability of mandatory levy of excise duty on made-ups
such as blankets bearing the name of the manufacturer and supplied
to the Ministry of Defence or its organizations.
F
2. The matter has been examined. On the issue of applicability of
excise duty on uniforms or made-up articles like quilt, blankets,
towels, linen etc. bearing the name or logo of a school, security
agency, company, hotel or airline etc, it is clarified that such
products would not merit treatment as “branded” products merely
because the name of the school, institution or company or their G
logo is either printed, embroidered or etched on them. This is
equally true of made ups such as towels, linen etc. bearing the
name of the hotel, restaurant or airlines. In all these cases, there
is no nexus between such a name or logo & the product at the
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1016 SUPREME COURT REPORTS [2018] 1 S.C.R.

A time of its sale which is essential ingredient in the definition of the
term “brand name”. Unless such garments/made–ups also bear a
brand name in addition to the name or logo of the school, security
agency, hotels, airlines and company, such goods would not attract
the excise duty. It is also gathered that in some cases, apart from
the name or logo of such organizations, the name of the tailor or
B
manufacturer is affixed on such garments. However, mere affixing
of name of the tailor or manufacturer would not constitute a brand
name. Another related issue is the applicability of the mandatory
excise duty to blankets which are supplied to the defence
establishment, armed forces, police forces etc. against tenders
C that stipulate that the name of the manufacturer should be clearly
indicated or marked on the product. As pointed out above, affixing
the name of the manufacturer on such goods would not, by itself,
bring them within the ambit of branded goods.”
12. A reading of the aforesaid letter and circular would show that
D merely because the name of an institution is printed or embroidered on
articles would not mean that they would become branded products. A
brand name, in addition to the name or logo, would have to be given in
order to attract excise duty. Also, mere affixing of the name of a
manufacturer would not constitute a brand name. Given the aforesaid
two documents, the Superintendent (Central Excise) did not go ahead
E with the notice dated 7.3.2011.
13. A typical requisition order issued by the Directorate of Supplies
and Disposals required the emblem of the purchaser and excise duty
payable by the purchaser to be printed on the jute bags manufactured by
the appellants. Also, what was required by the aforesaid requisition order
F was the following:
“Branding: Every bag shall be screen printed in dark navy blue
colour (darkest possible) with the emblems as per clause 8 with the
following:

G a) Identification of procurement agency (containing insignia and
name or short name or both as advised by the procurement agency).
b) Rabi 2013-14
c) Short name of mill in capitals and CM/L No.
d) “MANUFACTURED IN INDIA”
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A typical supply order placed by the Jute Commissioner also A
required, as a matter of law, that the purchaser’s name be put together
with the name of the manufacturer’s mill as well as the BIS certification
for purposes of identification of the jute bags to be used in the PDS.
14. Long after the exemption notification of 1.3.2013, by which
all jute bags were exempt whether branded or not, a show cause notice B
was issued on 17.12.2013 for the period from 1.3.2011 to 31.7.2013
demanding a sum of Rs.30,49,72,784/- by way of excise duty.
15. The learned Commissioner, by its order dated 7.3.2014,
confirmed the show cause notice, even for the period beyond 1.3.2013,
as follows: C
“4.7 On taking note of such arguments advanced by the said
assessee, I find that the said assessee have erred in fundamental
aspects of definition of “brand name” under Chapter Note 5 of
Chapter 63. When goods are bought and sold that would constitute
a market. In the instant case, the said assessee sold the jute bags D
to their customers, and such goods, allegedly being branded ones,
it cannot be contended that the said branded goods were not sold
in the market. Further, as per definition of “brand name” under
Chapter Note 5 of Chapter 63, “brand name” may not be
necessarily a name, as wrongly contended by them, but any writing,
mark, invented words may constitute “brand name” under the E
said definition. Here, the printings/writings on the jute bags satisfy
the definition of “brand name” under Chapter Note 5 of Chapter
63, as rightly alleged in the impugned Show Cause Notice.
4.8 On perusal of copy of notification no. nil dated 04.07.02 issued
by the Jute Commissioner and further clarification given by the F
said authority vide his letter dated 18.03.11, I find that some of the
printings/writings contained in the body of jute bags as per
requirement of the said Textile Ministry’s Notification, as opined
by the Jute Commissioner, and such goods cannot be treated as
branded goods as viewed by him. In this context, I find that G
persuasive value of the Jute Commissioner’s views in the matter
may not be ruled out or brushed aside at one stroke, but as a
quasi-judicial revenue authority, I am to go by the settled principles
of law that nothing can be imported in the wordings of the statutory
provisions, and for that matter, Chapter Notes require to be read
in its stricter terms. Since the ingredients of the definition of “brand H
1018 SUPREME COURT REPORTS [2018] 1 S.C.R.

A name” are present in the impugned jute bags, I am inclined to hold
that such goods bear brand name to consider them as branded
goods, for the purpose of levy of Central Excise duty for the rest
period i.e. March, 2011 to February, 2013 is also sustainable.”
16. The CESTAT, by the impugned order, set aside the penalty
B that was imposed and stated that the longer period of limitation could
not be availed in the facts of these cases. However, relying strongly
upon this Court’s judgment in Kohinoor Elastics (supra), it came to
the conclusion that since the jute bags had a brand name, the exemption
contained in the amended notification of 1.3.2011 would not apply to the
appellants. In dealing with the Finance Ministry circular dated 21.6.2011,
C the CESTAT brushed aside the same stating:
“Further, we find that the circular bearing no. 947/8/2011-CX dated
21.06.2011 referred to by the Appellant in the context of levy of
excise duty on garments and also it is not binding on the
interpretations advanced by the courts as has been held by the
D Hon’ble Supreme Court in the case of CCE, Bolpur vs. Ratan
Melting and Wire Industries, 2008 (231) ELT 22 (SC).”
17. The very definition of “brand name”, which has been referred
to hereinabove, has come up for consideration in several judgments of
this Court. In CCE v. Stangen Immuno Diagnostics, (2015) 11 SCC
E 761 at 763, this Court, in paragraph 3, set out the definition of brand
name, which is the same as the definition in the present case. This Court
then went on to hold:
“12. The central idea contained in the aforesaid definition is that
the mark is used with the purpose to show connection of the said
F goods with some person who is using the name or mark. Therefore,
in order to qualify as “brand name” or “trade name” it has to be
established that such a mark, symbol, design or name, etc. has
acquired the reputation of the nature that one is able to associate
the said mark, etc. with the manufacturer. We are supported in
G this view by series of judgments of this Court in Tarai Food Ltd.
v. CCE [Tarai Food Ltd. v. CCE, (2007) 12 SCC 721] the
expression “brand name” was explained in the following terms:
(SCC p. 723, paras 7 & 9)
“7. The words brand name connotes such a mark, symbol, design
or name which is unique to the particular manufacture which when
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used on a particular product would establish a connection between A
the product and the manufacturer.
***
9. Furthermore the definition of the words ‘brand name’ shows
that it has to be a name or a mark or a monogram, etc. which is
used in relation to a particular product and which establishes a B
connection between the product and the person. This name or
mark, etc. cannot, therefore, be the identity of a person itself. It
has to be something else which is appended to the product and
which established the link.”
xxx xxx xxx C

16. We would also like to reproduce the following observation
from CCE v. Bhalla Enterprises [CCE v. Bhalla Enterprises,
(2005) 8 SCC 308] : (SCC p. 311, para 6)
“6. The apprehension of the assessees that they may be denied D
the exemption merely because some other traders even in a remote
area of the country had used the trade mark earlier is unfounded.
The notification clearly indicates that the assessee will be debarred
only if it uses on the goods in respect of which exemption is sought,
the same/similar brand name with the intention of indicating a
connection with the assessees’ goods and such other person or E
uses the name in such a manner that it would indicate such
connection. Therefore, if the assessee is able to satisfy the
assessing authorities that there was no such intention or that the
user of the brand name was entirely fortuitous and could not on a
fair appraisal of the marks indicate any such connection, it would F
be entitled to the benefit of exemption. An assessee would also
be entitled to the benefit of the exemption if the brand name belongs
to the assessee himself although someone else may be equally
entitled to such name.”
17. These observations bring out two significant aspects, namely:
G
(1) As per the notification, the assessee would be debarred only if
it uses on the goods in respect of which exemption is sought, the
same/similar brand name with the intention of indicating a
connection with the assessees’ goods and such other person or
uses the name in such a manner that it would indicate such
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1020 SUPREME COURT REPORTS [2018] 1 S.C.R.

A connection. If there is no such intention or that the user of the
brand name was entirely fortuitous and could not on a fair appraisal
of the marks indicate any such connection, it would be entitled to
the benefit of exemption.
(2) The assessee would also be entitled to the benefit of exemption
B if the brand name belongs to the assessee himself although someone
else may be equally entitled to such name.”
(at pages 766, 767-768)
To similar effect is the judgment of this Court in CCE v. Sanghi
Threads, (2015) 14 SCC 701 at 702, wherein it was held that:
C
“3. Challenging the order of CESTAT, the present appeal is
preferred. We find from the narration of the aforesaid facts that it
is held that the monogram used by the respondent is nothing but
its own house-mark and is used for identification of the Group
and not a brand name for the identification of the product. What
D is emphasised is that the monogram does not belong to any third
party but that belongs to the Sanghi Group and is therefore, in-
house monogram. On these facts, we are of the opinion that the
case is squarely covered by the judgment of this Court in CCE v.
Stangen Immuno Diagnostics [(2015) 11 SCC 761 : (2015) 318
E ELT 585] decided on 19-3-2015.”
18. It is obvious that, on the facts of these cases, what is in fact
affixed to the jute bags is the name of the procurer agency in question
such as the FCI, the State Government of Punjab and so on, the crop
year, the name of the jute mill concerned, its BIS certification number
and the statement that the food grains are manufactured in India. It is
F
clear that all the aforesaid markings have, on the pain of penalty, to be
done by the manufacturers of the jute bags, given the Jute Control Order
and the requisition orders made thereunder. Obviously, such markings
are made by compulsion of law, which are meant for identification,
monitoring and control by Governmental agencies involved in the PDS.
G Neither do such markings enhance the value of the jute bags in any
manner nor is it the intention of the appellants to so enhance the value of
jute bags, which is necessary if excise duty is to be imposed. This flows
from the expression “…for the purpose of indicating, or so as to indicate,
a connection in the course of trade between the product and some person
using such name or mark…”. In the present case, the markings on the
H
M/S. RDB TEXTILES LTD. v. COMMR. OF CENTRAL 1021
EXCISE AND SERVICE TAX, KOLKATA-IV [R.F.NARIMAN, J.]

jute bags are not for the purpose of indicating a connection in the course A
of trade between the jute bag and some person using such name or
mark. The markings are by compulsion of law only in order that
Governmental authorities involved in the PDS may identify and segregate
the aforesaid jute bags. This being the case, it is obvious that there is no
“brand name” involved in the facts of the present cases.
B
19. Equally, it is clear that circulars that are issued by the Ministry
of Finance are binding on the department of Central Excise, there being
no judgment by this Court laying down the law contrary to such circulars.
This is a well settled proposition as laid down in paragraph 30 of CIT v.
Trans Asian Shipping Services (P) Ltd., (2016) 8 SCC 604 at 621.
C
20. However, since heavy reliance was placed on the judgment
of this Court in Kohinoor Elastics (supra) by the CESTAT, it has become
necessary for us to deal with the aforesaid judgment. The exemption
notification, which was involved on the facts of that case, was a notification
dated 28.2.1993. The relevant portion of the notification, with which the
Court was concerned, is set out in paragraph 4 as follows: D
“The exemption contained in this notification shall not apply to the
specified goods, bearing a brand name or trade name (registered
or not) of another person:
Provided that nothing contained in this paragraph shall be applicable
to the specified goods which are component parts of any E
machinery or equipment or appliances and cleared from a factory
for use as original equipment in the manufacture of the said
machinery or equipment or appliances and the procedure set out
in Chapter X of the said Rules is followed:
Explanation IX.—‘Brand name’ or trade name’ shall mean a F
brand name or trade name, whether registered or not, that is to
say a name or a mark [Code number, design number, drawing
number, 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 a connection in the course
G
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.”
(at page 530)
21. The judgment of this Court turned on the fact that the exemption
contained in the notification shall not apply to specific goods which bear H
1022 SUPREME COURT REPORTS [2018] 1 S.C.R.

A a brand name of another person. It may first be noticed that there was
no argument that the particular brand name concerned, on the facts of
that case, could not be said to be a “brand name” at all, which is what
has been argued before us. Further, it was held, on the facts of that
case, that:
B “It is an admitted position that the appellants are affixing the brand/
trade name of their customers on the elastics. They are being so
affixed because the appellants and/or the customer wants to
indicate that the “goods (elastic)” have a connection with that
customer. This is clear from the fact that the elastics on which
brand/trade name of ‘A’ is affixed will not and cannot be used by
C any person other than the person using that brand/trade name. As
set out hereinabove once a brand/trade name is used in the course
of trade of the manufacturer, who is indicating a connection
between the “goods” manufactured by him and the person using
the brand/trade name, the exemption is lost. In any case it cannot
D be forgotten that the customer wants his brand/trade name affixed
on the product not for his own knowledge or interest. The elastic
supplied by the appellants is becoming part and parcel of the
undergarment. The customer is getting the brand/trade name
affixed because he wants the ultimate customer to know that
there is a connection between the product and him.
E
(at page 532-533)
22. The facts of these cases are far from the facts in Kohinoor
Elastics (supra). In Kohinoor Elastics (supra), it was found that, as
a matter of fact, the customer wanted the brand name affixed on the
product because he wanted the consumer to know that there is a
F connection between the product and him. This is very far from the facts
of the present case, in that, as has been held by us above, it is clear that
the markings required on the jute bags are compulsory, being required
by the Jute Commissioner, and are not for the purpose of enhancing the
value of the jute bags by indicating a connection in the course of trade
G between the aforesaid products and the manufacturer of those products.
23. This being the case, the appeals are, therefore, allowed and
the judgment of the CESTAT is aside.

Devika Gujral Appeals allowed.
H