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2023 (1) TMI 343 - AT - Central ExciseSSI Exemption available under Notification No.8/2003-C.E. dated 01.03.2003 - use of brand name of others - case of Revenue is that since the appellant has used brand “Bintex” belonging to some other person, benefit of exemption under the said notification is not available - penalty - HELD THAT:- The “Bintex” brand is registered with Trade Mark Registry wherein, the appellant partner Shri Rajesh Kumar Harshdrai Punatar is also one of the owner - From the registration, it is clear that the appellant’s partner Shri Rajesh Kumar Harshdrai Punatar is one of the owner of the brand name “Bintex” out of the other family members. It is also submitted by the appellant that Shri. Rajesh Kumar Harshdrai Punatar is a partner in M/s. Abhay Industries from 01.04.2001 onwards. In this fact, it is opined that the appellant firm using the brand name of “Bintex” for which the appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of the brand name “Bintex”, the appellant firm is eligible for exemption under Notification No. 8/2003-CE dated 01.03.2003. This Tribunal in various judgments cited by the appellant held that if brand is owned by any of the member or jointly by the family, any member of the family if use the said brand, it cannot be said that assessee is using the brand name of other person. The present case is on much better footing for the reason that the appellant’s partner Shri Rajesh Harshdrai Punatar himself is one of the owner of the brand “Bintex” as per the Trade Mark Registration, therefore, there is no doubt that the brand name cannot be said to be belonging to any other person. Consequently, the appellant is eligible for exemption notification. Penalty - HELD THAT:- Since the demand against the main appellant is not sustainable in view of the above discussion and finding, the penalty on the partner also will not sustain. Moreover, since the penalty on partnership firm was imposed, a separate penalty on the partner cannot be imposed as held by the Hon’ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS JAI PRAKASH MOTWANI [2009 (1) TMI 501 - GUJARAT HIGH COURT]. Appeal allowed.
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