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2018 (12) TMI 849 - AT - Central ExciseSSI Exemption - use of brand name - affixation of stickers/ labels containing brand name - brand name owned by sister concern or not - manufacturing activities undertaken at the Lake View Road premises or not - time limitation. Held that:- It is clear that only such marks would constitute Brand Names/Trade Marks which are used for indicating or so as to indicate a connection in the course of trade between the goods on which exemption is sought and some other person using such name or mark. The manner of use of such Brand Name/Trade Name as also the intention of the supposed user are, therefore, essential factors to be kept in mind - There is no denying that the appellant No.1 had neither intended to use ‘SEN & PANDIT’ as its Brand Name nor was the said expression capable of indicating any connection in the course of trade between the appellant No.1’s products and M/s SPPEL. The mischief of using a Brand Name defined in the relevant SSI Exemption notifications is not attracted in the facts and circumstances of the present case - decided in favor of appellant. Registration of the Brand Name ‘SEN & PANDIT’ - Revenue’s entire case is based on the premise that M/s SPPEL was the owner of the Brand Name used by the appellant No. 1 - Held that:- The very fact that M/s SPPEL had applied for an altogether different set of Brand Names/ Trade Marks has been ignored while passing the impugned Order. The lower authority seems to have been misled while concluding that M/s SPPEL was the owner of Brand Name i.e. ‘SEN & PANDIT’. If that be the case then we must hold that the Learned Commissioner’s observation is devoid of substance - The allegations in the first Show Cause Notice, as confirmed in the Order-in-Original, fall flat when one bears in mind the correct factual position - it cannot be countenanced that simply by virtue of having applied for registration, M/s SPPEL had become the legal owner of the purported Brand Name ‘SEN & PANDIT’. It had not been shown that M/s SPPEL had the exclusive right to use the afore-mentioned expression to the exclusion of others, much less the appellant no. 1 - decided in favour of the appellants and against the Revenue. Whether the appellant No. 1 had undertaken manufacturing activities at the Lake View Road premises? - Held that:- The Adjudicating Authority has not conclusively established that the post-sale activities, repairing works, quality control, affixation of sticker amounted to ‘manufacture’ within the meaning of Section 2(f) of the Act, the confirmation of demand of Central Excise duty of ₹ 24,21,120/- is held as unsustainable in law and set aside. Issue no. 3 is, thus, answered in favour of the appellants. Extended period of limitation - Held that:- It is not necessary to go into this issue. Penalty also could not be visited. Appeal allowed - decided in favor of appellant.
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