TMI Blog1998 (7) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts are that a show cause notice dated 19-1-1990 was issued to the Respondents for denying the exemption under Notification No. 140/83 on the ground that the original owner of the brand name was M/s. Hoyu Kabusshiki Kaishe, a Japanese company and the cartons of the products carried the words formulation of Hoyu Company Ltd. Nagoya, Japan . The Assistant Collector allowed the benefit of notification to the Respondents under order in original dated 14-10-1991 observing that by Deed of Assignment dated 21-9-1988, the Trade Mark Bigen was given to the Respondents and they were the owner of the brand name; that the trade mark was registered in their name; that the trade mark was registered in their name; that by mentioning the alleged wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; that the demands were issued periodically as mentioned in para 2 of the order in original which were well within the time limit. 4. Shri V. Sridharan, ld. Counsel, submitted on behalf of the Respondents that the Trade Mark was registered in the name of the Respondents with effect from 21-9-1988 under the Trade and Merchandise Mark Act, 1958; that the Trade Mark Bigen with a device of a Japanese woman was assigned to them by the Japanese Company under a Deed of Assignment. He further submitted that the Dy. Registrar of Trade Marks under letter dated 8-3-1990 informed the Respondents that in view of the assignment dated 21-9-1988, Hoyu Kabushiki Kaisha, Japan ceases to be the proprietor of the Registered Trade Mark and as per the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI Transmissions (P) Ltd. 1997 (91) E.L.T. 292 (Cal.) held that as the Petitioner had acquired an exclusive right in trade mark, they were using the brand name of their own. In reply, the ld. JCDR mentioned that none of the decisions relied upon by the Respondents deals with the Notification No. 145/83 and therefore the ratio of those decisions cannot be applied to the facts of the present case; that it is well settled law that a notification containing exemption has to be construed strictly and in case of ambiguity or doubt benefit must go to the revenue. 5. We have considered the submissions of both sides. Notification No. 140/83, dated 5-5-1983 as amended provides exemption to cosmetics and toilet preparations. Para 6 of the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Tribunal in the case of Opus India (supra) and Calcutta High Court s decision in ESBI Transmissions P. Ltd. (supra), we are not convinced by the argument of the ld. JCDR that these decisions were not pronounced in respect of Notification No. 140/83 inasmuch as the para 6 of the Notification is worded similar to para 7 of Notification No. 175/86, dated 1-3-1986. Further the use of the phrase formulation of Hoyu Company Ltd. Nagoya, Japan will not amount to use of brand name so as to attract the provisions of para 6 of the Notification. We agree with the findings of the Commissioner (Appeals) on this point contained in the impugned order. The Commissioner (Appeals) has also dealt with the contention that another unit at Hubli wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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