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These appeals arise out of Judgment and Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi Bench [for short “CEGAT”] on 02.08.2002 whereby the Tribunal had allowed the appeals filed by the respondents holding that the respondents were not guilty of clandestine removal of excisable goods and also that the goods of

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                                                        REPORTABLE

               IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NOS. 4500-4502 OF 2003

Commissioner of Central Excise, Mumbai      .... Appellant

                                 Versus

M/s. Kalvert Foods India Pvt. Ltd. & Ors.                               .... 

Respondents

                              JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

  1.    These   appeals   arise   out   of   Judgment   and   Order 

        passed   by   the  Customs,   Excise   and   Gold   (Control) 

        Appellate   Tribunal,   New   Delhi  Bench   [for   short 

        "CEGAT"]   on   02.08.2002   whereby   the   Tribunal   had 

        allowed   the   appeals   filed   by   the   respondents   holding 

        that   the   respondents   were   not   guilty   of   clandestine 

        removal of excisable goods and also that the goods of 

                               Page 1 of 22

        the respondent no. 1 were not excisable inasmuch as 

        they   were   not   packed   in   containers   under   a   brand 

        name.

      2. Before entering into rival contentions of the parties, it 

        would be necessary although in a nutshell to look into 

        the   facts   of   the   case   leading   to   filing   of   the   present 

        appeals.

3.      The   respondent   No.   1,   M/s.  Kalvert   Foods   India   Pvt. 

Ltd.   is   a   company   (in   short   hereinafter   referred  to   as   'the 

Company')   engaged   in   the   manufacture   of   P   &   P   Food 

Products,   such   as,   assorted   jams,   pickles,   squashes, 

cooking   sauces,   chutneys,   syrups,   synthetic   vinegars   etc. 

The  company   is  also   trading   in  sugar,  salt  and   pepper  by 

packing   into   small   packs.   The   respondent   No.   2,   Shri 

Yunus A. Kalvert is the Managing Director of the Company. 

4.      On   22.11.2000,   on   receiving   information   that 

respondents   were   indulging   in   clandestine   removals   of   its 

finished   P   &   P   food   products   without   payment   of   Central 

Excise   Duty,   the   revenue   authorities   searched   the   factory 

premises   of   the   respondent   no.   1.         Searches   were   also 

                                  Page 2 of 22

carried   out   at   the   premises   of   its   distributors/wholesale 

dealers/traders of respondent no. 1 situated in and around 

Mumbai and other connected premises.  

5.    During   the   search   conducted   at   the   premises   of   the 

respondent no. 1 several incriminating documents, articles 

and records were found.  A huge quantity of finished goods 

were  also   found  lying  in   the   factory   premises.     Further,   it 

was   also   noticed   that   there   was   one   tempo   parked   inside 

the   factory   premises   loaded   with   cartons   containing   the 

excisable   goods   manufactured   by   the   said   company   and 

was about to leave the factory premises.   On inquiry from 

the   driver   of   the   said   tempo   it   was   found   that   the   driver 

was   not   in   possession   of   any   documents   relating   to   the 

goods loaded in the said tempo.   On inspection of invoices 

at the premises of the respondent no. 1, it was also found 

that there were two invoices with the same serial number, 

in respect of different products.    The officers took stock of 

the goods in the factory and it was found that the finished 

goods lying in the factory were in excess of the stock shown 

and accounted for in the RGI Register.  

                                Page 3 of 22

6.    Specific   allegation  against  the   respondent   is  that  the 

goods   found   lying   excess   in   the   stock   than   what   were 

entered into RGI register, valued at Rs. 7,33,668/- and the 

same was seized.  

7.    Thereafter,   search   was   also   carried   out   at   the 

premises   of   the   dealers/traders,   to   whom   the   company 

allegedly   supplied   the   finished   goods.     The   goods   found 

lying in those premises to the value of Rs. 6,22,946/- were 

also seized on the ground that they were not duty paid. 

8.    Similarly,   the   search   was   carried   out   by   the   officers 

on   28-11-2000,   at   the   premises   of   M/s.   Relish   Trading 

Company   (in   short   'RTC')/the   selling   agent   of   the 

respondent-company,   M/s.   Sai   Krupa,   a   partnership   firm 

of   the   Managing   Director   of   the   respondent   No.   1;   and   at 

the   premises   of   sole   proprietor   of   RTC   and   records 

pertaining   to   the   sale   and   purchase   of   the   goods   lying   in 

the offices of these companies, were seized.   It revealed to 

the   searching   officers   that,   in   fact,   the   respondent-

company   had   cleared   jams,   syrup,   sauces,   pickles,   etc., 

from the  factory  premises  to the above said  selling agents 

without payment of duty, but had shown those clearances 

                               Page 4 of 22

as  that  of  the   sugar,   in   the   invoices   and   had  also  cleared 

the branded goods to the dealers/traders. 

9.    After   completion   of   the   entire   process   a   show   cause 

notice was issued to the Company and its Director.   Such 

notices were also issued to the proprietor of M/s. RTC, its 

partner and M/s. Sai Krupa Corporation.  Through notices 

issued,   duty   demand   was   raised   from   the   company   and 

penalty was also proposed to be imposed on the company. 

Reply   was   filed   by   the   respondents   to   the   aforesaid   show 

cause notices. 

10.  The adjudicating authority, namely, the Commissioner 

of   Central   Excise,   Mumbai,   passed   an   order   dated 

27.02.2002,   holding   that   the   respondent   no.   1   with   the 

connivance   of   the   respondents   2   and   3   have   deliberately 

attempted   to   pass   off   excisable   goods   as   non-excisable 

goods   with   an   intent   to   evade   payment   of   excise   duty. 

Consequently,   the   Commissioner   confirmed   the   duty 

demand   and   ordered   confiscation   of   the   seized   goods   and 

also imposed penalty equivalent to the amount of duty on 

the company and also directed to pay interest on the excise 

duty etc.  

                              Page 5 of 22

11.    Being   aggrieved   by   the   aforesaid   order,   respondents 

filed   appeals   before   the   CEGAT.   The   said   appeals   were 

heard   and   Tribunal   passed   the   judgment   and   order   on 

02.08.2002,   which   is   impugned   herein.     The   Tribunal   by 

its   order   set   aside   the   findings   of   the   Commissioner   of 

Central Excise, Mumbai holding that the respondents were 

not   guilty   of   clandestine   removal   of   excisable   goods   and 

also that the goods of respondent no. 1 were not excisable 

inasmuch as they were allegedly not packed in containers 

under a brand name and therefore not required to pay any 

excise duty.  

12.    The   present   appeals   are   directed   and   preferred 

against   the   said   judgment   and   order   on   which   we   heard 

learned counsel appearing for the parties.  

13.    The   learned   counsel   appearing   for   the   parties   have 

painstakingly   and   extensively   taken   us   through   the 

relevant   documents   on   record   to   which   reference   shall   be 

made   during   the   course   of   our   discussion   hereinafter. 

However,   before   we   record   our   findings   and   the 

conclusions   on   the   issues   raised,   we   must   also   deal   with 

                              Page 6 of 22

the   tariff   headings   and   some   of   the   documents   which   are 

relevant for our purpose and material available on record. 

14.    Admittedly, the years with which we are concerned in 

these appeals are 1996-97, 1997-98 and 1998-99.   So far 

the year of 1996-97 is concerned the relevant entry for our 

purpose is 20.01 and sub-heading 2001.00 under Chapter 

20   of   the   Central   Excise   Tariff   of   India   1996-97 

(incorporating   rates   of   Central   Excise   &   Service   Tax). 

Chapter   20   relates   to   preparations   of   vegetables,   fruits, 

nuts or other parts of plants and it prescribes "Nil" rate of 

duty for the goods mentioned in this sub-heading 2001.00. 

Description of goods in the said sub-heading is as under:

"preparations   of   vegetables,   fruit,   nuts   or   other   parts   of  

plants, including jams, fruit jellies, marmalades, fruit or nut  

puree   and   fruit   or   nut   pastes,   fruit   juices   and   vegetable  

juices,   whether   or   not   containing   added   sugar   or   other  

sweetening   matter   put  up   in   unit   containers   and   bearing   a  

brand name" 

15.    Chapter 20 of the Central Excise Tariff of India 1998-

99 (incorporating rates of Central Excise & Service Tax as 

in operation on 2nd  June, 1998) prescribes 8% excise duty 

for   the   goods   mentioned   under   sub   heading   2001.10. 

                               Page 7 of 22

Description of goods mentioned in sub-heading 2001.10 is 

as under:

"preparations   of   vegetables,   fruit,   nuts   or   other   parts   of  

plants, including jams, fruit jellies, marmalades, fruit or nut  

puree   and   fruit   or   nut   pastes,   fruit   juices   and   vegetable  

juices,   whether   or   not   containing   added   sugar   or   other  

sweetening   matter   put  up   in   unit   containers   and   bearing   a  

brand name". 

What is brand name is also explained in the notes included 

in Chapter 20 to the following effect:

""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 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".

16.    Chapter 21, of the Central Excise Tariff of India 1998-

99 (incorporating rates of Central Excise & Service Tax as 

in   operation   on   2nd  June,   1998)   relates   to   "Miscellaneous 

Edible Preparations".   It also prescribes 8% excise duty for 

the   goods   mentioned   under   sub   heading   2103.10. 

Description of goods mentioned in sub-heading 2001.10 is 

as under:

                                  Page 8 of 22

"Sauces,   ketchup   and   the   like   and   preparations   therefore;  

fixed condiments and mixed seasonings; mustard  flour and  

mead   and   prepared   mustard   put  up in   unit  containers  and  

bearing a brand name"

Sub-heading   2108.20   prescribes   18%   excise   duty   for 

"Edible   preparations,   not   elsewhere   specified   or   including 

Sharbat"   under   Chapter   21.     Sub-heading   2203.00   also 

prescribes 18% excise duty for "Vinegar and substitutes for 

vinegar obtained from acetic acid" under Chapter 22. 

17.    During   the   search   operation   carried   out   by   the 

appellants   several   incriminating   articles   were   found   with 

brand name "Kalvert Anchor" or "Kalvert" in assorted forms 

which were manufactured by M/s. Kalvert Foods (I) P. Ltd. 

During the course of investigation statement of Shri Yunus 

A. Kalvert, Managing Director of respondent company was 

recorded under Section 14 of the Central Excise Act, 1944, 

who  inter   alia  deposed   that   the   respondent   company   was 

engaged   in   the   manufacture   of   P   &   P   food   products   like 

jams;   pickles;   syrups;   vinegars   etc.   bearing   their   brand 

name  "KALVERT  ANCHOR"   and  the  other  Directors  of  the 

company   viz.   Shri   Akbar   Ali   Kalvert,   his   father   and   Shri 

Irshad Y. Kalvert.  

                              Page 9 of 22

18.    During   the   course   of   arguments   learned   counsel 

appearing   for   the   respondent   submitted   before   us   that 

although the aforesaid statements of Managing Director of 

the Company and other persons were recorded during the 

course of judicial proceedings but the same were retracted 

statements,   and   therefore,   they   cannot   be   relied   upon. 

However,   the   statements   were   recorded   by   the   Central 

Excise Officers and they were not police officers. Therefore, 

such   statements   made   by   the   Managing   Director   of   the 

Company   and   other   persons   containing   all   the   details 

about the functioning of the company which could be made 

only   with   personal   knowledge   of   the   respondents   and 

therefore could not have been obtained through coercion or 

duress   or   through   dictation.   We   see   no   reason   why   the 

aforesaid   statements   made   in   the   circumstances   of   the 

case should not be considered, looked into and relied upon. 

19.    We are of the considered opinion that it is established 

from the record that the aforesaid statements were given by 

the  concerned   persons  out  of  their   own  volition   and there 

is   no   allegation   of   threat,   force,   coercion,   duress   or 

                            Page 10 of 22

pressure   being   utilized   by   the   officers   to   extract   the 

statements   which   corroborated   each   other.     Besides,   the 

Managing   Director   of   the   Company   on   his   own   volition 

deposited   the   amount   of           Rs.   11   lakhs   towards   excise 

duty   and   therefore   in   the   facts   and   circumstance   of   the 

present case, the aforesaid statement of the counsel for the 

respondents   cannot   be   accepted.     This   fact   clearly   proves 

the   conclusion   that   the   statements   of   the   concerned 

persons   were   of   their   volition   and   not   outcome   of   any 

duress.

20.    During   the   course   of   arguments   our   attention   was 

also   drawn   to   the   statement   of   Managing   Director   of   the 

Company   where   he   had   admitted   the   fact   of   clandestine 

clearance   of   excisable   goods   and   therefore   has   voluntarily 

come forward to sort out the issue and to pay the Central 

Excise   duty   liability   and   that   he   has   paid   Central   Excise 

duty   voluntarily   under   TR6   Challans   totaling   to   Rs. 

11,00,000/- on various dates.   Similarly statement of Miss 

Vinita M. Khanolkar - proprietor of RTC was also recorded 

under   Section   14   of   the   Central   Excise   Act,   1944   along 

with   Shri   Shekhar   Mogaviera   -   Production   Supervisor   of 

                              Page 11 of 22

M/s.  Kalvert   Foods   India   Pvt.   Ltd.     Statements   of   various 

other   persons   were   also   recorded   under   Section   14   of  the 

Central Excise Act.  

21.    Our   attention   was   also   drawn   by   the   counsel 

appearing for the appellant to the findings recorded by the 

adjudicating   authority   to   the   fact   that   there   have   been 

recovery   of   unaccounted   finished   excisable   goods   from   8 

different   dealers   in   and   around   Mumbai   and   that   there 

have   been   creation   of   firms   dealing   in   similar   products 

from   the   same   premises   by   the   same   persons   having   no 

capital   or   machinery   and   also   that   there   have   been   only 

one   tempo   invariably   used   for   delivery   of   excisable   goods 

from   factory   to   the   buyers   though   some   invoices   were 

issued   by   the   firms   other   than   M/s.   Kalvert   Foods   India 

Pvt.   Ltd.   and   that   there   have   been   use   of   parallel   sets   of 

invoices of the same serial numbers supported by recovery 

of   a   serially   numbering   machine   and   blank   invoices 

without any printed serial numbers.  

22.    On   the   basis   of   the   aforesaid   material   discussed 

hereinbefore   the   adjudicating   authority   came   to   the 

                                Page 12 of 22

conclusion that the respondent no. 1 with the connivance 

of   respondent   nos.   2   and   3   have   been   deliberately 

clandestinely   removing  excisable   goods   as   non-excisable 

goods   with   intent   to   evade   payment   of   excise   duty. 

However,  the   aforesaid  judgment   and order  passed  by  the 

adjudicating   authority,   namely,   the   Commissioner   of 

Central   Excise,   Mumbai,   was   set   aside   by   the   Tribunal 

holding   that   neither   the   tempo   nor   the   goods   loaded 

therein   could   be   legally   seized   and   confiscated   when   the 

relevant documents were shown to the officers at the spot. 

It  was also observed  by  the  Tribunal  that it  could be said 

that   an   attempt   was   being   made   to   clear   those   goods   in 

tempo   in   a   clandestine   manner,   when   the   company 

representative   produced   the   invoices   and   other   relevant 

documents in respect thereof.   These findings were arrived 

at by the Tribunal apparently ignoring the materials which 

are considered hereinbefore and referred to.  

23.    There   is   no   reference   about   the   statement   of  Miss 

Vinita   M.   Khanolkar   -  sole   proprietor   of   M/s.   RTC,   in   the 

judgment   of   order   passed   by   the   Tribunal,   when   she   was 

examined  under  Section  14  of  the Central Excise Act,  she 

                              Page 13 of 22

had   clearly   stated   that   her   company   bought   large 

quantities of excisable goods from the respondent company 

and   in   turn   sold   them   to   its   distributors.   She   also 

confirmed the documents seized from her residence which 

included   correspondence   with   their   customers   regarding 

promotion of the "Kalvert brand" products.  

24.    The   Tribunal   also   failed   to   consider   and   discuss   the 

specific   allegation   of   the   appellant   that   respondent   no.   1 

maintained   two  sets  of  computerized  commercial  invoices, 

one for excisable products like jams, sauce, syrup etc and 

the  other   for   non-excisable   goods  such  as  salt,  sugar   and 

pepper which were marked as L series.     It has also come 

on   evidence   that   L   series   sales   for   the   period   1996-1999 

was  only  made   to  RTC   in  huge  quantities   and  that  in  the 

guise of selling salt, sugar and pepper, the respondent No. 

1   was   in   fact   selling   excisable   goods   to   RTC.   These   facts 

have   been   found   and   taken   note   of   by   the  adjudicating 

authority  but   the   same   were   totally   ignored   by   the 

Tribunal.  

                              Page 14 of 22

25.    Due to the aforesaid reasons and on the basis of the 

materials available  on  record it is clear that the Company 

was   guilty   of   clandestine   removal   of   excisable   goods   as 

non-excisable   goods   in   order   to   evade   excise   duty.     It   is 

proved from the fact that the Managing Director voluntarily 

came   forward   to   sort   out   the   issue   and   to   pay   the   Excise 

duty and paid Excise duty to the extent of Rs. 11,00,000/- 

on different dates.  The aforesaid act of the respondent no. 

1   was   very   material   and   relevant   but   the   same   was   also 

ignored   by   the   Tribunal   while   arriving   at   a   wrong 

conclusion.  

26.    Therefore, according to us the issue with regard to the 

clandestine   removal   of   excisable   goods   as   non-excisable 

goods by the respondent from their premises and selling to 

its   dealers   and   distributors   is   clearly   proved   from   the 

materials on record.

27.    In  view  of the  aforesaid  position and since there was 

clandestine   removal   of   excisable   goods,   the   period   of 

limitation   in  the  present   case  would   have   to  be  computed 

from the date of their knowledge, arrived at upon raids on 

                               Page 15 of 22

the   premises.     In   the   present   case   therefore   the   extended 

period   of   limitation   would   be   available   as   there   was 

suppression of facts by the respondents with the intention 

to evade the central excise duty inasmuch as they did not 

account   for   the   manufactured   goods   in   the   prescribed 

record.  

28.     The   Tribunal   has   also   recorded   a   finding   that   the 

respondents never cleared the goods in question under any 

brand name and being unbranded they were chargeable to 

NIL rate of duty.

29.     The   aforesaid   finding   is   also   unacceptable.     The 

Managing Director of the respondent company has himself 

stated that they have been selling their products under the 

brand   name   "Kalvert"   and   on   the   basis   of   the   said 

statement   and   other   record   found   on   the   articles   sold   by 

the   respondent   company   the   aforesaid   finding   of   the 

Tribunal is wrong and perverse.  

30.     The   Tribunal   has   also   held   that   because   the   brand 

name "Kalvert" was not registered in their name therefore it 

cannot be held that respondents were using `brand name'. 

                              Page 16 of 22

The   Tribunal   further   held   that   the   name   on   the   goods 

manufactured and cleared by the respondent in the market 

could   at   best   be   termed   as   "House   mark"   and   not   brand 

name/trade name.  

31.    In   our  considered  opinion,  the   aforesaid   findings   are 

also   totally   wrong   and   recorded   in   violation   of   the   law   of 

Trade   Marks.     During   the   course   of   arguments,   our 

attention   was   drawn   to   a   Judgment   of   this   Court   in   the 

case   of  TARAI   FOOD   LTD.   V.  COMMISSIONER   OF  

CENTRAL EXCISE, MEERUT-II, reported in 2007(8) S.T.R. 

442   (S.C.).     While   placing   reliance   on   the   said   Judgment, 

the  counsel   appearing   for   the   respondents   submitted  that 

what is a `Brand name'  is as stated  in paragraph  4 of the 

said Judgment.   He relied  on the said definition of `Brand 

name' and then submitted that the phrase "New Improved 

Quick   Frozen   French   Fries"   was   not   held   to   be   a   brand 

name,  and  therefore,   according   to him  the  brand  name  of 

the   respondent   company   "Kalvert"   being   a   "House   Name" 

could not be termed as "Brand Name".   

                               Page 17 of 22

32.    In  our considered  opinion, the aforesaid  brand name 

"New Improved Quick Frozen French Fries" is a descriptive 

word and the same could not have been termed and coined 

either   as   a   "house   name"   or   a   "brand   name"   under   any 

circumstances.   There   can   be   no   dispute   therefore   with 

regard to the proposition of law laid down by this Court in 

the   aforesaid   decision.     We   may   also   refer   to   another 

decision of this Court in  Astra Pharmaceutical Pvt. Ltd. 

V.  Collector   of   Central   Excise,   Chandigarh,   reported   in 

[1995   (75)   E.L.T.   214   (S.C.)].     That   was   a   case   of 

Pharmaceutical   product.   In   the   said   decision   also   the 

manner   and   scope   of   "Brand   name"   and   distinction 

between   `House   mark'   and   "Product   mark/Brand   name" 

has been brought  out.  It  was stated therein by  this Court 

that "House mark" which is usually a device in the form of 

an   emblem,   word   or   both   is   an   identification   of   the 

manufacturer which is compulsory under the Drug Rules. 

On   the   other   hand,   product   mark   or   brand   name   is 

invariably a word or a combination of a word and letter or 

numeral by which the product is identified and asked for. 

In paragraph 6 of the said Judgment,  Narayanan's Book  

                            Page 18 of 22

on Trade Marks and Passing-Off was also referred to and 

since   the   same   may   have   a   bearing   to   the   facts   of   the 

present case, it is extracted herein below:

"677A. House mark and Product mark (or Brand name).

              In   the   pharmaceutical   business   a   distinction   is  

made   between   a   House   mark   and   a   Product   mark.     The  

former is used on all the products of the manufacturer. It is  

usually   a   device   in   the   form   of   an   emblem,   word   or   both.  

For each product a separate mark known as a product mark  

or   a   brand   name   is   used   which   is   invariably   a   word   or   a  

combination   of   a   word   and   letter   or   numeral   by   which   the  

product is identified and asked for. In respect of all products  

both the Product mark and House mark will appear side by  

side on all the  labels,  cartons  etc.    Goods are  ordered only  

by   the   product   mark   or   Brand   name.   The   House   mark  

serves   as   an   emblem   of   the   manufacturer   projecting   the  

image of the manufacturer generally."

33.    In   the   book   of   "Trade   Marks"   by  Sarkar,   the 

distinction   between   the   expressions   "House   mark"   and 

"Product mark" or "Brand name" has been clearly brought 

out   by   way   of   reference   to   the   decision   in  Astra  

Pharmaceutical   Pvt.   Ltd.   (supra).     It   is   stated   therein 

that   "House   mark"   is   used   on   all   the   products   of   the 

manufacturer   and   that   it   is   usually   a   device   or   a   form   of 

emblem of words or both.   It was also pointed out that for 

each product a separate mark known as a "Product mark" 

or   "Brand   name"   is   used   which   is   invariably   a   word   or 

                                Page 19 of 22

combination   of   word   and   letter   or   numeral   by   which   the 

product is identified and asked for.  It was also stated that 

in   respect   of   all   products   both   the   "Product   mark"     and 

"Brand name" would appear side by side on all the labels, 

cartons etc.   and that the "House mark"   is used generally 

as an emblem of the manufacturer projecting the image of 

the   manufacturer,     whereas   "Brand   name"   is   a   name   or 

trade mark either unregistered or registered under the Act. 

34.    Therefore,   it   is   not   necessary   that   "Brand   name" 

should be compulsorily registered.   A person can carry on 

his   trade   by   using   a   "Brand   name"   which   is   not   even 

registered.     But   in   violation/infringement   of   trade   mark, 

remedy   available   would   be   distinctly   different   to   an 

unregistered brand name from that of remedy available to a 

registered brand name.  

35.    Unfortunately,   the   Tribunal   did   not   consider   and 

properly   appreciate   the   apparent   distinction   between   the 

two   distinct   expressions   i.e.   "House   mark"     and   "Brand 

name" and thereby proceeded to set aside the well-written 

Judgment   passed   by   the   Commissioner   of   Central   Excise, 

                             Page 20 of 22

Mumbai who has recorded his reasons giving cogent basis 

for his reasoning. 

36.    In   the   book   of   "Law   of   Trade   Marks"   by  K.C.  

Kailasam and Ramu Vedaraman the distinction between 

`Product   mark'   and   `House   mark'   has   been   beautifully 

delineated, which is as under:

"It   is   possible   that   the   proprietor   may   use   several   trade  

marks   in   respect   of   his   goods   (known   as   Product   mark),  

besides using a common mark in all his products to indicate  

the origin of the goods from the enterprise (known as House  

mark).        This   practice   is   more   predominant   in   the  

pharmaceutical   trade.     Though   both   are   trade   marks   and  

are   registrable   as   such,  each   has   its   own   distinct   function.  

While the House mark represents the image of the enterprise  

from   which   the   goods   emanate,   the   Product   mark   is   the  

means  by which  goods are  identified and  purchased in the  

market   place   and   it   the   focal   point   of   presentation   and  

advertisement."

37.    In view of above discussion, it is clear that what was 

being   used   by   the   respondent   under   the   expression 

"Kalvert" was a "Brand name"  and not a "House mark" as 

sought   to   be   alleged   by   the   respondent   and   has   been 

wrongly accepted by the Tribunal.  Therefore, the articles of 

assorted   jams,   pickles,   squashes,   cooking   sauces, 

chutneys,   syrups,   synthetic   vinegars   etc.   manufactured 

and sold by the respondent company under a brand name 

                               Page 21 of 22

"Kalvert"   were   liable   to   be   charged   for   excise   duty   at   the 

rate prescribed in the Excise Law.

38.    The   Tribunal   committed   manifest   error   in   coming   to 

its   conclusion   and   therefore   the   order   passed   by   the 

Tribunal   is   set   aside   and   the   order   dated   27.02.2002 

passed by the Commissioner of Central Excise, Mumbai is 

restored.  

39.    The   appeals   are   allowed   to   the   aforesaid   extent   but 

leaving the parties to bear their own costs.

                                    ...............................................J

                                                           (Dr.   MUKUNDAKAM 

SHARMA)

                                    ...............................................J

                                            (ANIL R. DAVE)

NEW DELHI,AUGUST  09, 2011.                               Page 22 of 22

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