2004 (97) ECC 151 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(B)

Shri V.K. Agrawal, Member (T) and Shri M.P. Bohra, Member (J)

CCE, Ludhiana

Versus

Nestle India Ltd., Moga

Appeal No. E-2644/03-NB(B)

[Arising out of Order-in-Appeal No. 211/CE/APPL/LDH/03 dated 30.5.2003 passed by the Commissioner of Customs & Central Excise (Appeals), Ludhiana]

Final Order No. 358/2004-B, dt. 25.3.2004, Certified on 7.6.2004

Classification (C. Excise)

Tomato Puree -- Under Sub-heading 2001.90 or under Sub-heading 2001.10 of CETA -- Contention of Appellant department is that the package of goods, manufactured by respondents carry the name of Product as `tomato puree' and name of respondent as manufacturer i.e. `M/s Nestle India Ltd.' which establish connection b/w Product & manufacturer -- Held, "Revenue is treating the name of Product and name of manufacturer, mentioned on the packing, as equivalent to using the brand name mere mentioning the manufacturer's name on package, does not amount to using the brand name & cannot made basis for classifying the goods under Heading 2001.10 of CETA.

[Para 3]

Appeal of Revenue rejected

PRESENT :

Shri Virag Gupta, JDR for the appellant.

Shri B.L. Narasimhan, Adv. for the respondent.

Cases Cited :

1. CCE, Meerut v. Tarai Foods, 2000 (120) ELT 215 (T)............................................................... [Para 2]

2. Dabur India Ltd. v. CCE, Ghaziabad, 2003 (158) ELT 604 (T).............................................. [Para 2]

3. Narula & Company Pvt. Ltd. v. CCE, Noida, 2004 (60) RLT 394 (CESTAT-Del.)............... [Para 2]

Per : V.K. Agrawal

The issue involved in this appeal, filed by the Revenue, is whether Tomato Puree manufactured by M/s. Nestle India Ltd., is classifiable under Sub-heading 2001.90 to the Schedule to the Central Excise Tariff Act, as confirmed by the Commissioner (Appeals) or under Sub-heading 2001.10, as claimed by the Revenue.

2. We heard Shri Virag Gupta, learned DR and Shri B.L. Narasimhan, learned Advocate. It is the contention of the Revenue that the package of the goods, manufactured by the respondents, carry the name of the product `tomato puree' and the name of the respondents themselves as manufacturer i.e. M/s. Nestle India Ltd., which clearly establishes a connection between the product and the manufacturer in the course of trade; that this product is bearing the brand name as per the definition of the brand name given in Note 4 to Chapter 20 of the Central Excise Tariff; that it has been held by the Tribunal in the case of CCE, Meerut v. Tarai Foods, 2000 (120) ELT 215 (T) that the writing on the packing clearly establishes a connection in the course of trade between the manufacturer of the product even though the package does not bear the brand name as such. On the other hand, Sh. B.L. Narasimhan, learned Advocate, relied upon the decision in the case of Dabur India Ltd. v. CCE, Ghaziabad, 2003 (158) ELT 604 (T) wherein it has been held that, as per the provisions of Prevention of Food Adulteration Rules, 1955, the name and complete address of the manufacturer is mandatory on the packaging and the appellants are only mentioning their name and address on the packaging. It is essential, as per the provisions of Prevention of Food Adulteration Rules, 1955 and, therefore, mere mentioning the name of the manufacturer, cannot be made basis for classifying the goods under Heading 2001.10 of the Tariff; that similar view has been expressed by the Tribunal in the case of Narula & Company Pvt. Ltd. v. CCE, Noida, 2004 (60) RLT 394 (CESTAT-Del.).

3. We have considered the submissions of both the sides. The Revenue is treating the name of the product and the name of the manufacturer, mentioned on the packing, as equivalent to using the brand name. It has not been controverted by the Revenue that as per Rule 32C of Prevention of Food Adulteration Rules, 1955, it is mandatory to mention the name and complete address of the manufacturer on every package of food. The respondents, in compliance of this provision, have mentioned their name on the package of tomato puree manufactured and sold by them. Therefore, it cannot be claimed by the Revenue that mere mentioning of manufacturer's name on the package, amounts to using the brand name. Similarly, the product has to be given a name and such name cannot be considered as a brand name. In similar situation, where Dabur Foods Ltd. were manufacturing garlic paste and their name was mentioned on the package alongwith their address, the Tribunal has held in Dabur India Ltd. (supra) that "merely mentioning the name of Dabur Foods Ltd. as manufacturer cannot be made basis for classifying the goods under Heading 2001.10 of Central Excise Tariff which covers preparation of vegetable, fruit, etc. put up in a unit container and bearing a brand name". The Tribunal has also distinguished the decision in the case of Tarai Foods in the case of Narula & Company Pvt. Ltd. (supra) in which case also the flavoured sugar syrup and pineapple juice, packed in containers bearing manufacturer's name and address by observing that "the decision in Tarai Foods, is not attracted to the present case inasmuch as that decision was rendered taking into account other factors like logo, the way in which the goods were described on packages, etc." Further, we also observe that in Tarai Foods case (supra), the provisions of Prevention of Food Adulteration Rules, were not taken into consideration which mandate the manufacturer to mention his name and address on the food packages. We, therefore, find no infirmity in the impugned order and accordingly reject the appeal, filed by the Revenue.

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