T.K. Jayaraman, Member (T)

1. M/s Vetcare Altech (P) Ltd., Bangalore, (herein after referred to as M/s. VAPL or the appellants) are the manufactures of organic chemicals, disinfectants and other products. The brief facts of the case are as under:

2. There was a dispute regarding classification of some of the products manufactured by the appellants and also their entitlement of SSI benefit under the relevant exemption Notifications in view of the fact that the Appellants used the name VETCARE in their products and the brand name VETCARE was owned by M/s Tetragon Chemie (P) Ltd., Bangalore. When the Department decided the issue against the appellants, the appellants filed an appeal to the Tribunal. The Department had also filed as appeal before the Tribunal against the Order-in-Original passed by the Commissioner. Both the appeals were decided by the Tribunal in its Final Order No. 972 and 973/2001 dated 31.5.2001. In the above order, the Tribunal remanded the matter to the Original Authority. The Original Authority, consequent to the Tribunals remand order, passed to Order-in-Original dated 3.12.2001 against which the appellants have come in appeal before this Tribunals remand order, passed the Order-in-Original dated 3.12.2001 against which the appellants have come in appeal before this Tribunal. In the above order, the adjudicating authority has held that in the year 1994-1995. the appellants were not eligible for SSI exemption as they were using the brand name/trade name of M/s Tetragon Chemie (P) Ltd., Bangalore, who were not availing the benefit of SSI exemption during the said period. He had also imposed a penalty of Rs. 1,00,000/- under Rule 173Q(1) read with Rules 9(2), 52A & 226 of the erstwhile Central Excise Rules, 1944. The appellants strongly challenged the findings of adjudicating authority on the following grounds-

(i) The appellants being duly registered as a legal entity under company law and also registered as an SSI with the Government of Karnataka under the name VETCARE holding that the name VETCARE as that of another could not arise at all and the order of the adjudicating authority is a parody of justice.

(ii) The Trade Marks Act, made in 1958, does not prohibit and in fact permits a person to use his own name, for the goods dealt with him in terms of Section 35 of the.

(iii) Inspite of the Tribunals specific direction in the remand order, the adjudicating authority has not considered the case law of KM. Multani v. Paramount Talkies 1943 (13) Comp. Cas. 90 (Bom) which was a vital submission meriting careful consideration.

(iv) The products manufactured by the appellants were different from those of M/s. Tetragon and registration of VETCARE as a trade mark by that company was irrelevant, inconsequential and immaterial to the issue as hand.

(v) As the appellants had not suppressed any facts, the imposition of penalty on them is not justified.

3. Shri K.S. Ravi Shankar, learned Advocate appeared for the appellants and Shri L. Narasimha Murthy, learned SDR appeared for the Revenue.

4. During the personal hearing, Ld. Advocate contended that as the appellants have been registered under the Company Act, they have every right to use their own name VETCARE on their products. In this connection, he invited our attention to Section 147 of the Company Act. It was also pointed out that the adjudicating authority had not at all considered the case law of K.M. Multani v. Paramount Talkies 1943 (13) Comp. Cas. 90 (Bom). He also relied on the following case laws-

(i) CCE, Hyderabad v. Sarat Electronics 2004 (114) ECR 562 (Tri. - Bang.)

(ii) Voltrac India Pvt. Ltd. and Anr. v. CCE, Gutur and Vice Versa 2004 (63J.RLT 58 (CESTAT - Ban.)

(iii) Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Chandigarh

5. Ld. SDR urged that the decision of the Original Authority is correct in law as the appellants had used the brand name of another company who were not eligible for exemption during the relevant period.

6. We have considered the rival contentions, It is very clear from the records that the appellant is a company registered under the Company Act with the name VETCARE. Under the same name, the appellants Company has also been registered as SSI with the Government of Karnataka. Under these circumstances, going by the ratio of the decision in case of K.M. Multani v. Paramount Talkies (supra), we hold that the appellant has every right to use his Companys own name on his products. Therefore, the SSI benefit cannot be denied to the appellant even though the name VETCARE has been registered by another company, namely M/s. Tetragon Chemie (P) Ltd. In other words, so long as a Company uses its own name on its products, SSI benefit cannot be denied on the ground that the Companys name has been registered by another Company as its brand/trade name. In the circumstances of the case, the name VETCARE should be considered as house mark as for as the appellants are concerned. Hence, they will also be covered by the Supreme Court decision in the case of Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise Chandigarh .

7. In view of our above findings, there is no justification for denying SSI benefit and consequently, the levy of penalty is also not sustainable. The appeal is allowed.

(Operative portion of the order has been pronounced in the court on completion of hearing on 23.9.2004.)