Holding

The Supreme Court affirmed that the use of UTS/TSN stickers constitutes use of another person's brand name, disqualifying the assessee from the SSI exemption, and upheld the CESTAT's decision.

Summary

Unison Electronics Pvt. Ltd. manufactured ice‑cream makers under its own brand "CREMICA" and sold them to United Tele Shopping (UTS) and Tele Shopping Network (TSN). The customers' supervisors affixed stickers bearing the abbreviations "UTS" and "TSN" on the goods before dispatch. The Central Excise Department treated these abbreviations as the brand names of other persons, thereby denying the manufacturers the benefit of the Small Scale Industry (SSI) exemption under Notification No. 175/86‑CE and levied duty and penalty, which the CESTAT upheld (except a separate penalty on the director). The Supreme Court examined whether the use of such stickers constituted use of another person's brand name as contemplated in clause 4 and Explanation IX of the notification. Relying on earlier decisions interpreting the exemption notification strictly, the Court held that the stickers indeed indicated a connection with another entity and disqualified the assessee from the exemption, and that the CESTAT's factual findings were not open to interference. Consequently, the appeals were dismissed.

Issues considered

The use of stickers bearing the abbreviations of customers (UTS/TSN) amounts to use of another person's brand name or trade name under the SSI exemption notification.
Whether the CESTAT erred in interpreting clause 4 and Explanation IX of Notification No. 175/86‑CE in disallowing the exemption.

Legislation cited

Central Excise Act, 1944s. 5-A

Subjects

Central ExciseSmall Scale Industry exemptionBrand nameTrade nameNotification interpretationCESTATSupreme CourtExcise dutyPenalty

Judgment

[2009] 2 S.C.R. 607

UNISON ELECTRONICS PVT. LTD. AND ANR. A
V.
COMMISSIONER, CENTRAL EXCISE, NOIDA
Civil Appeal Nos 6788-6789 of 2005
FEBRUARY 13, 2009
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ)
Central Excise Act, 1944 :
c
s. 5-A - SS/ exemption Notification - Benefit not allowed
in respect of goods bearing brand name of another person -
Items manufactured by assessee affixed with stickers bearing
UTS and TSN - Revenue treating words "UTS" and "TSN" as
brand names of other persons disallowing benefit of Notification
- CESTAT upholding demand of duty and penalty imposed
on assessee-company except the separate penalty imposed D
on its director - HELD: In view of the position in law indicated
in various decisions, and conclusions of CESTAT being
essentially factual, no scope for interference.
The appellants were in the business of E
manufacturing and selling, inter alia, ice-cream makers in
their own brand name 'CREMICA' and were availing benefit
of SSI exemption Notification. The items sold to United
Tele Shopping (UTS) and Tele Shopping Network (TSN)
were being ~~xamined by supervisors of these customers
before dispatch from the factory and stickers bearing UTS/ F
TSN were being affixed thereto. The Revenue treated
these words 11 UTS" and 11 TSN" as brand names
belonging to other persons and disallowed the benefit of
exemption Notification. The CESTAT upheld the demand
of duty and penalty imposed on the company but set G
aside the separate penalty imposed on -its Director.
Aggrieved, the assessee filed the appeals.
Dismissing the appeals, the Court
607 H
608 SUPREME COURT REPORTS [2009] 2 S.C.R.

A HELD : The conclusions of CESTAT are essentially h.
factual. In view of the factual position noted by CESTAT
and the position in law indicated in the decisions, there is
no scope for interference. [para 1O] [622-G]
Commissioner of Central Excise, Trichy v. Rukmani
B Pakkwel/ Traders 2004 (11) SCC 801; Commissioner of
Central Excise, Chandigarh-I v. Mahaan Dairies 2004 (11)
SCC 798; Commissioner of Central Excise, Calcutta v. Emkay
Investments (P) Ltd. and Anr. 2005 (1) SCC 526; Reiz
Electrocontrols (P) Ltd. v. Commissioner of Central Excise,
C Delhi-I 2006 (6) SCC 213; Commissioner of Central Excise,
Chandigar-1 v. Mahaan Dairies 2004 (166) ELT 23 (SC); and
Pahwa Chemicals Private Limited v. Commissioner of Central
Excise, Delhi 2005 (189) ELT 257 (SC) - relied on.
D Union of India v. Paliwal Electricals (P) Ltd. And Another
(1996) 3 sec 407 - referred to.
.~

Case Law Reference
~
2004 (11) sec 801 relied on para 6
E 2004 (11) sec 798 relied on para 7
2005 (1 > sec 526 relied on para 8
2006 (6) sec 213 relied on para 9
2004 (166) ELT 23 relied on para 9
F .,
(1996) 3 sec 407 referred to para 10
2005 (189) 1 ELT 257(SC) relied on para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos
G 6788-6789 of 2005
From the final Judgement and Order dated 1.03.2005 of
the Customs Excise and Service Tax Appellate Tribunal New
Delhi in Final Order No. 250-251/058.
Jagjit Singh Chhabra, for the Appellants.
H
-t
I'
~

:: UNISON ELECTRONICS PVT. LTD. AND ANR. V. 609
COM., CENTRAL EXCISE, NOIDA

"!' ~ S. Washim A. Qadri, Anil Katiyar, Shweta Garg, Ashish A
,
4
Gopal Garg B.K. Prasad and B.V. Balaram Das, for the
Respondent.
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J. B
1. In these appeals challenge is to the order passed by
the Customs, Excise & Service TaxAppellate Tribunal, New Delhi
"'
·-i (in short 'CESTAT'). The basic issue is whether the appellants
are clearing excisable goods manufactured by them bearing
__,
the brand name of another person. c
2. Background facts in a nutshell are as follows:
The SSI Exemption Notification which provides exemption
to the excisable goods manufactured by a SSI unit provides
that the exemption shall not apply to goods bearing the brand D
~ name or trade name, whether registered or not, of another
'
I
. persons. Explanation to Notification defines the brand name as
a name or mark, such as a symbol, monogram, label, signature
or invented word or writing which is used in relation to the
specified goods for the purpose of indicating a connection in E
the course of a trade between specified goods and some person
using such name or mark with or without any indication of the
identity of that person .
.. ~
According to the appellants they manufacture ice-cream
makers cooler and Popcorn makers and avail of the benefit of F
SSI Exemption Notification and sell ice cream maker in their
own brand name "CREMICA" and sell the same to different
customers including United Tele Shopping (in short 'UTS') and
Tele Shopping Network (in short 'TSN') and that in respect of
sale to UTS & TSN the goods were being examined by the G
!!!!!( 1 Supervisors of these customers before dispatch from their
factory and stickers bearing UTS/TSN were being affixed and
~
these sticker bear the words "Checked SI. No. Do not remove
this sticker" and·that the Department has treated the words UTS
and TSN as brand name belonging to other and has disallowed H
,
1-

610 SUPREME COURT REPORTS [2009] 2 S.C.R.

l.
A the benefit of small scale exemption notification. It was submitted '
that the words UTS and TSN are not brand names but are the
abbreviations of the name of the marketing companies which (~
•
does not amount to use of the brand name.
Stand of the department was as follows:
B
It has not been controverted by the appellants that the
excisable goods before clearance from their factory premises
bear stickers of UTS/TSN and as per definition of the brand
name given in SSI Exemption Notification, "brand name" means
c any name, symbol, monogram, label, signature or invented word
or writing which indicates connection in the course of trade
between excisable goods and same person using such name
and that the words UTS/TSN mentioned on the packaging of
.~
the products indicate the connection in the course of trade with ·,
I
D UTS and TSN.
..
I

After considering the rival stands the CESTAT concluded
as follows:
"A perusal of the sample shown by the learned consultant
at the time of hearing revealed that the sticker mentions
E
that it has been put after checking the quality of the product '
manufactured by the appellants. In fact the sticker reads
asunder: D_
.~-

~
__ _

F

Tele Shopping Network

G UTS
United Teleshopping

Quality at your doorstep
H
..

612 SUPREME COURT REPORTS [2009] 2 S.C.R.
r-
i
A notification or on which no excise duty is payable for any <-
.k,
•
'\
other reason; t-
~
(b) any clearances bearing the brand name or trade name
of another person, which are ineligible for the grant of this t~

·exemption in terms of paragraph 4 below :
B
(c) any cl.earances of the specified goods which are used
as inputs for further manufacture of any specified goods
within the "factory of production of specified goods. Such . )--
I

clearances of specified goods used as inputs shall be ~

c deemed to be exempt from the whole of the duty of excise
leviable thereon:
(d) any clearances of strips of plastics used within the
'-
factory of production for weaving of fabrics or for
man_ufacture of sacks or bags made of pqlymers of ethylene
D or propylene.
r-,,
4. The exemption contained in this notification shall not )

apply to goods bearing a brand name or trade name,
1~,.
whether registered or not, of another person, except in the 1•
following case:~
E ~

,..
(a) where the specified goods, being in the nature of .....
COfl'.lponents or parts of any machinery or equipment or
appliances, are cleared for use as original equipment in
the manufacture of the said machinery or equipment or
F appliances by following the procedure laid down in Chapter
· X of the Central Excise Rules, 1944. Manufacturers, whose
aggregate value of clearances of the specified goods for
use as original equipment does not exceed rupees thirty
lakhs in a financial year, may submit a declaration
regarding such use instead of following the procedure
G
laid down in Chapter X of the said rules;
,. ·-
(b) where the goods bear a brand name or trade name of
Khadi and \(illage lndu.stries Commission or of the State
Khadi and Village Industry Board or the National Small \;
..
H Industries Corporation or the State Small Industries
t
P;
.
UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 613
CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

Development Corporation or the State Small Industries A·
Corporation;
5. Explanation - For the purpose of this notification :-
(a) "brand name" or "trade name" shall mean a brand
name or trade name, whether registered or not, that is to B
say a name or a mark, such as 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
of trade between such specified goods and some person c
using such name or mark with or without any indication of
the identity of that person;
(b) where the specified goods manufactured by a
- manufacturer bear a brand name or trade name, whether
registered or not, of another manufacturer or trader, such D
specified goods shall not, merely by reason of that fact be
denied to have been manufactured by such other
manufacturer or trader."
6. In Commissioner of Central Excise, Trichy v. Rukmani
Pakkwell Traders (2004 (11) sec 801) it was noted as follows: E

"5. The Tribunal then proceeds on the basis that the
exemption can be denied only if the trade mark or brand
nam~ is used in respect of the same goods for which the
trade mark is registered. In coming to this conclusion we F
are afraid that the Tribunal has done something which is
not permissible to be done in law. It is settled law that
exemption notifications have to be strictly construed. They
must be interpreted on their own wording. Wordings of
some other notification are of no benefit in construing a G
particular notificat~on. Clause 4 of this notification and the
.t Explanation (set out hereinabove) make it clear that the
exemption will not apply if the specified goods (i.e. scented
supari) bear a brand or trade name of another person.
Neither in clause 4 of the notification nor in Explanation IX H
I
614 SUPREME COURT REPORTS [2009] 2 S.C.R. r

A is it provided that the specified goods must be the same
or similar to the goods for which the brand name or trade
name is registered. The Tribunal has, in adopting the above
reasoning, effectively added to the notification words to
-,
'

the effect "brand name or trade name in respect of the
B sa,me goods". This is clearly impermissible. It is to be
s~en that there may be an unregistered brand name or an
unregistered trade name. These might not be in respect
of any particular goods. Even if an unregistered brand
name or trade name is used, the exemption is lost. This ·-
"":
c makes it very clear that the exemption would be lost so
long as the brand name or trade name is used irrespective
of whether the use is on same goods as those for which
the mark is registered.
6. The Tribunal had also held that under the notification the
D_ use must be of "such brand name". The Tribunal has held
that the words "such brand name" show that the very same
brand name or trade name must be used. The Tribunal
has held that if there are any differences then the exemption , __

would not be lost. We are afraid that in coming to this '
E conclusion the Tribunal has ignored Explanation IX.
Explanation IX makes it clear that the brand name or trade
name shall mean a 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,
F monogram, label, signature or invented word or writing.
This makes it very clear that even a use of part of a brand
name or trade name, so long as it indicates a connection
in the course of trade would be sufficient to disentitle the
person from getting exemption under the notification. In
this case, admittedly, the brand name or trade name is the
G
word "ARR" with the photograph of the founder of the group.
Merely because the registered trade mark is not entirely
reproduced does not take the respondents out of clause
4 and make them eligible to the benefit of the notification."

H 7. Similarly, in Commissioner of Central Excise,
'i"=
UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 615
CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

,,; Chandigarh-I 11. Mahaan Dairies (2004 (11) SCC 798) in paras A
6 and 8 it was noted as follows:
"6. We have today delivered a judgment in CCE v. Rukmani
Pakkwell Traders (2004 (11) SCC 801) wherein we have
held in respect of another notification containing identical
words that it makes no difference whether the goods on 8
which the trade name or mark is used are the same in
" respect of which the trade mark is registered. Even if the
1111 goods are different, so long as the trade name or brand
name of some other company is used the benefit of the
notification would not be available. Further, in our view, C
once a trade name or brand name is used then mere use
of additional words would not enable the party to claim the
benefit of the notification.
8. It is sE~ttled law that in order to claim benefit of a
0
notification, a party must strictly comply with the terms of
the notification. If on wording of the notification the benefit
is not available then by stretching the words of the
notification or by adding words to the notification benefit
cannot be conferred. The Tribunal has based its decision
on a decision delivered by it in Rukmani Pakkwell Traders E
v. CCE (1999 (109) ELT 204 (CEGAT). We have already
overruled the decision in that case. In this case also we
hold that the decision of the Tribunal is unsustainable. It is
accordingly set aside."
F
8. Further in Commissioner of Central Excise, Calcutta
v. Emkay Investments (P) Ltd. and Anr. (2005 (1) SCC 526)
this Court stated the position in law as follows:
"7. The dispute, in the instant case, is as to whether the
respondents who are manufacturers of plywood under their G
own brand name "Pelican" have made themselves.
disentitled to the benefit of small-scale exemption
Notification No. 175/86-CE by using a logo indicating
"MERINO" on their products along with their brand name.
The next question which arises is as to whether the H
616 SUPREME COURT REPORTS [2009] 2 S.C.R.

A markings or inscriptions should be considered as the brand
name of M/s Merinoply and Chemicals Ltd. and will come ' '

within the mischief of clause 7 read with Explanation VIII
of the notification, as contenc:jed by the department. Clause
7 reads as follows :
B "The 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."
c
Explanation VI 11 of clause 7 reads as follows :
'Brand name' or 'trade name' shall mean a brand name or
trade name whether registered or not, that is to say a
name or a mark, such as symbol, monogram, label,
D signature or invented word or writing which is used in
relation to such specified goods tor 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
E the identity of that person.'
8. Mr G.E. Vahanvati, learned Solicitor General,.submitted
that the impugned goods admittedly contained the
registered logo "MERINO" belonging to and owned by M/
s Merinoply and Chemicals Ltd. Thus it was a clear case ..
F where the impugned goods were· admittedly affixed with
registered logo/trade mark of the other person not eligible
to SSI exemption. According to the learned Solicitor
General, CEGAT erred .in not appreciating that to attract
, provision of clause 7 of Notification No. 175/86-CE, it is
G sufficient that the product contained a trade mark/logo of
another ineligible person which was fully satisfied in the
present case and whether the product also contained a
brand name/trade name/logo of the manufacturer would
not and cannot alter such position. Arguing further, learned
H Solicitor General contended that the interpretation of
UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 617
CENTRAL EXCISE, NOIDA [DR ARIJIT PASAYAT J] -

Explanation VIII as advanced by the Tribunal does not A
appear correct in law and fact. It was imperative that by
using the registered logo "MERINO" belonging to M/s
Merinoply and Chemicals ltd. on their own products, the
first respondent herein, M/s Emkay Investments ltd. fulfilled.
the purpose of indicating a relation between the said s
products and the logo owner so as to influence the trade
and, therefore, the provision of Explanation VIII were fully
satisfied so far as the present case was concerned.
Learned Solicitor Gen_eral also submitted that the
exception or exempting provision in a taxing statute should c
be construed strictly and it is not open to the court or to the
tribunal to ignore conditions prescribed in the exemption
notification.
9. In support of his submissions, learned Solicitor General,
relied on the following judgments: D
1. B.H.E.L. Ancillary Assn. v. CCE (1990(49) ELT 33 (Mad)
2. CCE v. Rukmani Pakkwel/ Traders (2004 (11) SCG 801
3. CCE v. Mahaan Dairies (2004 (11) SCC 798) .
E
4. CCE v. Bhalla Enterprises (2004 (173) ELT 225
15_._ We have gone through the common order passed by
the Tribunal. In our view, the Tribunal has err~d in not
appreciating that to attract provision of clause 7 of
Notification No. 175/86-CE, it is sufficient that the product F
contained a_ trade mark/logo of another ineligible. person
which was fully satis.fied in the instant case and whether
the product also contained the brand name/trade name/
logo of the manufacturer would not and cannot.alter such,.,-
position. Likewise, the interpretation of Explanation VIII G
as advanced by the Tribunal does not appear to be correct
in law and in fact. It was imperative that by using the
registered logo "MERINO" belonging to M/s Merinoply and
Chemicals Ltd. on their own product M/s Emkay
Investments Ltd. fulfilled the purpose of indicating a relation H
618 SUPREME COURT REPORTS [2009] 2 S.C.R.

A between the said products and the logo owner so as to
influence the trade and therefore, the provisions of
'""'
Explanation VIII were fully satisfied so far as the case on
hand was concerned. The finding of the Tribunal to the
contrary, in our opinion, is wrong and liable to be set aside."
B 9. Considering the.position involved in Reiz Electrocontrols
(P) Ltd. v. Commissioner of Central Excise, Delhi-I (2006 (6)
sec 213) the position was re-iterated as follows :
"8. So far as the views regarding non-eligibility are /"

c concerned view expressed by ~his Court in several cases
needs to be noted.
9. In Commissioner of Central Excise, Chandigar-1 v. l;_
Mahaan Dairies [2004 (166) ELT 23 (SC)] it was noted
(in para 6) as follows:
D
"We have today delivered a judgment in Commissioner of
Central Excise, Trichy v. Rukmani Pakkwell Traders - )

· . 2004 (165) E.L.T. 481 (S.C.) (Civil Appeal Nos. 3227-
3228/1998) wherein we have held in respect of another
. Notification containing identical words that it makes no
E difference whether the goods on which the trade name or
mark is used are the same in respect of which the trade
mark is registered. Even if the goods are different so long
as the trade name or brand name of some other Company
is used the benefit of the Notification would not be ...
F available. Further, in our view, once a trade name or brand
name is used then mere use of additional words would
not enable the party to claim the benefit of Notification."
;.

10. In Union of India v. Paliwal Electricals.(P) Ltd. and Another
[(1996) 3 sec 407] it was noted (in paras 1O and 11) as
G
follows:
"10. We are of the opinion that while examining the
challenge to an exemption notification under the Central
Excise Act, the observations in the decisions aforesaid
H should be kept in mind. It should also be remembered that
• UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 619
CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

generally speaking the exemption notification and the A
,,....
terms and conditions prescribed therein represent the
policies of the Government evolved to subserve public
interest and public revenue. A very heavy burden lies upon
the person who challenges them on. the ground of Article
'
(
14. Unless otherwise established, the court must presume B
that the said amendment was found by the Central
~
Government to be necessary for giving effect to its policy
-( (underlying the notification) on the basis of the working of

• ~
the said notification and that such an amendment was
found necessary to prevent persons from taking unfair
advantage of the concession. In fact, in this case, the
c
explanatory note appended to amending notification says
so in so many words. If necessary, the Court could have
called upon the Central Government to establish the
reasons behind the amendment. (It did not think it fit to do
so.) It is equally necessary to bear in mind, as pointed out D
repeatedly by this Court, that in economic and taxation
·-f
sphere, a large latitude should be allowed to the legislature.
The courts should bear in mind the following observations
made by a Constitution Bench of this Court in R.K. Garg
v. Union of India [1981 (4) SCC 675]: (SCC pp. 690-91, E
para 8)
"Another rule of equal importance is that laws relating to
economic activities should be viewed with greater latitude
than laws touching civil rights such as freedom of speech,
religion etc. It has been said by no less a person than F
Holmes, J. that the legislature should be allowed some
play in the joints, because it has to deal with complex
problems which do not admit of solution through any
doctrinaire or strait-jacket formula and this is particularly
true in case of legislation dealing with economic matters, G
where, having regard to the nature of the problems required
to be dealt with, greater play in the joints has to be allowed
to the legislature. The Court should feel more inclined to
give judicial deference to legislative judgment in the field
of economic regulation than in other areas where
H
620 SUPREME COURT REPORTS [2009] 2 S.C.R.

A fundamental human rights are involved. Nowhere has this "--,
admonition been more felicitously expressed than in Morey
v. Doud [354 US 457 (1957)] where Frankfurter, J. said in
his inimitable style:
'In the utilities, tax and economic regulation cases, there
B are good reasons for judicial self-restraint if not judicial
deference to legislative judgment. The legislature after all
has the affirmative responsibility. The courts have only the
power to destroy not to reconstruct. When these are added
>·
to the complexity of economic regulation, the uncertainty,
c the liability to error, the bewildering a conflict of the experts,
and the number of times the Judges have been overruled
· by events-self-limitation can be seen to be the path of
judicial wisdom and institutional prestige and stability.'
The court must always remember that 'legislation is
D directed to practical problems, that the economic
mechanism is highly sensitive and complex, that many •·
problems are singular and contingent, that laws are not
abstract propositions and do not relate to abstract units

-
and are not to be measured by abstract symmetry' that
E exact wisdom and nice adaptation of remedy are not
always possible and that judgment is largely a prophecy
based on meagre and uninterpreted experience'. Every
legislation particularly in economic matters is essentially
empiric and it is based on experimentation or what one
•
may call trial and error method and therefore it cannot
F
provide for all possible situations or anticipate all possible
abuses. There may be crudities and inequities in
complicated experimental economic legislation· but on that
account alone it cannot be struck down as invalid; The
courts cannot, as pointed out by the United States Supreme
G Court in Secy. of Agriculture v. Central Roig Refining Co.
[ 94 L Ed 381 : 338 US 604 (1950)] be converted into -\
tribunals for relief from such crudities c;ind inequities. There
may even be possibilities of abuse, but that too cannot of
itself be a ground for invalidating the legislation, because
H it is not possible for any legislature to anticipate as if by
UNISON ELECTRONICS PVT. LTD. AND ANR. V. COM., 621
CENTRAL EXCISE, NOIDA [DR. ARIJIT PASAYAT J]

,..i some divine prescience, distortions and abuses of its A
'
legislation which may be made by those subject to its
provisions and to provide against such distortions and
abuses. Indeed, howsoever great may be the care
bestowed on its e framing, it is difficult to conceive of a
legislation which is not capable of being abused by B
perverted human ingenuity. The Court must therefore
adjudge the constitutionality of such legislation by the

-
1 generality ·of its provisions and not by its crudities or
inequities or by the possibilities of abuse come to light,
the legislature can always step in and enact suitable
amendatory legislation. That is the essence of pragmatic
c
approach which must guide and inspire the legislature in
dealing with complex economic issues."
11. The same principle should hold good in the matter of
exemption notifications as well, for the said power is part D
and parcel of the enactment and is supposed to be
-of.
employed to further the objects of enactment - subject,
of course, to the condition that the notification is not ultra
vires the Act, and/or Article 14 of the Constitution of India.
(See PJ. Irani V State of Madras [(1962) 2 SCR 169]".
E
11. In Pahwa Chemicals Private Limited v. Commissioner
of Central Excise, Delhi [2005 (189) ELT 257 (SC)] it
was held as' foliows at para 3 :
+
"Paragraph 4 and Explanation IX of Notification have been
construed by this Court in Commissioner of Central F
. Excise v. Rukhmani Pakkwell Traders, 2004 (165) E.L.T.
481; as also in Commissioner of Central Excise,
Chandigarh v. Mczhaan Dairies, 2004 (166) ELT. 23. In
bot~ these decisions this Court held that Paragraph 4
read with Explanation IX of the notification could not be G
construed in the manner as contended by the assessees,
namely, to make it necessary for the owner of the trade
mark/trade name to use the goods in respect of the
specified goods manufactured by the assessee. We see
no reason to differ with the reasoning of this Court in the H
622 SUPREME COURT REPORTS [2009] 2 S.C.R.

A aforesaid decisions. Clause 4 of the Notification read with
Explanation IX clearly debars those persons from the
benefit of the exemption who use someone else's name
in connection with their goods either with the intention of
indicating or in a manner so as to indicate a connection
B between the assessees goods and such other person.
There is no requirement for the owner of the trade mark
using the name or mark with reference to any particular
goods. The object of the exemption notification was neither
· to protect the owners of the trade mark/trade name nor
the consumers from being misled. These are
c considerations which are relevant in cases relating to
disputes arising out of infringement/passing off actions
under the Trade Marks Act. The object of the Notification
is clearly to grant benefits only to those industries which
otherwise do not have the advantage of a brand name.
D The decisions cited by the Counsel appearing on behalf
of the assessees relate to decisions involving Trade Mark
disputes and are in the circumstances not apposite."
13. It appears that such a stand was not taken before the
Tribunal. In any event in view of what has been stated by
E
this Court in Mahaan Dairies' case (supra) the Tribunal
has to consider the plea. ln-Mahaaf'J Diaries' case (supra)
it was observed as follows:
"9. It was however, urged that the respondents have
F applied for registration of the Mark "Mahaan Taste Maker".
We clarify that if and when they get their mark registered
then they would become entitle to the benefit of the
Notification in accordance with Board's Circular No.88/
88, dated 13.12.1988."
G 10. The conclusions of CESTATare essentially factual and,
therefore, there is no scope for interference. In view of the factual
position noted by CESTAT and the position in law indicated
above, the appeals are dismissed. No costs.

R.P. Appeals dismissed.