COMMISSIONER OF CENTRAL EXCISE, CHENNAL-II COMMISSIONERATE, CHENNAI versus M/S. AUSTRALIAN FOODS INDIA (P) LTD., CHENNAI

Citation: [2013] 1 S.C.R. 932 · Decided: 14-01-2013 · Supreme Court of India · Bench: D.K. JAIN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2013] 1 S.C.R. 932 
COMMISSIONER OF CENTRAL EXCISE, CHENNAl-11 
COMMISSIONERATE, CHENNAI 
v. 
M/S. AUSTRALIAN FOODS INDIA (P) LTD., CHENNAI 
(Civil Appeal No. 2826 of 2006) 
JANUARY 14, 2013 
[D.K. JAIN AND JAGDISH SINGH KHEHAR .. JJ.] 
Excise - Cookies sold by assessee at its outlet - Use of 
C brand name "cookie man" on sale of cookies in plastic 
pouches/containers - Entitlement of assessee-respondent to 
benefit of small scale exemption in respect of cookies sold 
loosely from the counter of the retail outlet - Held: Not entitled 
- It is not necessary for goods to be stamped with a trade or 
o brand name to be considered as branded goods under the 
SS/ notification - A scrutiny of the surrounding circumstances 
is not only permissible, but necessary to decipher the same 
- One fails to see how the same branded cookies, sold in 
containers, could transform to become unbranded ones, when 
E sold from the same counter, or even from an adjoining 
counter, without packaging carrying the brand name - The 
cookies were sold from a dedicated outlet of "Cookie Man" 
where no other products but those of the assessee were sold 
- The invoices carried the name of the company and the 
F cookies were sold from a counter of the store - The store's 
decision to sell some cookies without containers that were 
stamped with its brand or trade name did not change the 
brand of the cookies -
The cookies sold even without 
inscription of the brand name, indicated a clear connection 
with the brand name, in the course of assessee's business of 
G manufacture and sale of cookies under the brand name 
"Cookie Man" - They continued to be branded cookies of 
"Cookie Man" and hence could not claim exemption under 
H 
932 
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 933 
AUSTRALIAN FOODS INDIA (P) LTD. 
the SS/ Notification - S.S./. Notification No. 1193-C.E., dated 
A 
28th February, 1993, as amended. 
Respondent-assessee was engaged 
in the 
manufacture and sale of cookies from branded retail 
outlets of"Cookie Man". The brand name used the words 
"Cookie Man" accompanied with a logo. The assessee 
was selling some of these cookies in plastic pouches/ 
containers on which the brand name described above 
was printed. No brand name was affixed-Or inscribed on 
B 
the cookies. Excise duty was duly p'id, on the cookies 
C 
sold in the said pouches/containers. However, on the 
cookies sold loosely from the counter of the same retail 
outlet, with plain plates and tissue paper, duty was not 
paid. The retail outlets did not receive any loose cookies 
nor did they manufacture them. They received all cookies 
D 
in sealed pouches/containers. Those sold loosely were 
taken out of the containers and displayed for sale 
separately. 
Notice was issued to the a.ssessee by the 
Commissioner to show cause as to why (i) the cookies 
E 
sold by the assessee at its outlets be not classified under 
Chapter sub-heading 1905.11 as biscuits and (ii) in view 
of their use of brand name "Cookie Man" on sale of 
cookies in plastic pouches/containers, S.S.I. exemption 
should not be disallowed. Upon consideration of the 
F 
explanation 
furnished 
by 
the 
assessee, 
the 
Commissioner inter-alia came to the conclusion that 
unless the specified goods or the packaging in which 
these are sold, bear the brand name or the logo, 
prescribed S.S.I. exemption cannot be denied. Thus, the 
G 
Commissioner held that since there was neither any 
material evidence nor averment to prove that the brand 
name was embossed on the cookies, the assessee was 
~ligible to avail of the benefit of small scale exemption in 
respect of cookies sold loosely from the counter of the 
H 
934 
SUPREME COURT REPORTS 
[2013] 1 S.C.R. 
A retail outlet. Aggrieved, both the Department and the 
assessee filed cross appeals before the Customs, Excise 
and Service Tax Appellate Tribunal which affirmed the 
decision of the Commissioner, and therefore the present 
appeal by the revenue under Section 35L(b) of the 
B Central Excise Act, 1944. 
The question which arose for consideration was, 
whether the manufacture and sale of specified goods 
that did not physically bear a brand name, from brt1nded 
sale outlets, disentitled the assessee from the benefit of 
C S.S.I. Notification No. 1/93-C.E., dated 28th February, 1993, 
as amended from time to time. 
Allowing the appeal, the Court 
0 
HELD: 1.1. If a final product is marked or stamped 
with a brand name, it is clearly a branded good; to stretc

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