TMI Blog2001 (7) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... licensing control in respect of the product on the ground that they were an SSI unit with clearance value of goods below the limits prescribed under Notification No. 1/93-C.E., dated 28-2-1993. On 24-3-1994, they submitted a letter to the Central Excise Range Supdt. intimating that the trade mark BONUS belonged to them and that they had applied for registration of the trade mark. In that letter, they also stated that the total sales value of the goods for the period 1-4-1993 to 28-2-1994 was only Rs. 7,27,428.75. That letter purported to affirm the claim for exemption under Notification No. 1/93-C.E. ibid. Later on, as they found that their clearances were likely to cross the exemption limit under the notification, they applied for, and obtained, registration with the Department under Rule 174 of the Central Excise Rules for manufacture of the aforesaid product. At about that stage, officers of Central Excise visited the appellant s unit and found that the goods were being cleared under the brand name BONUS . The appellants then produced Assignment Deed dated 22-11-1993 executed between them and M/s. Ecograph A.G., Switzerland, in support of their claim that they were the propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d name on their product. The trade mark BONUS was registered in the name of the appellants w.e.f. 11-3-1994 as per the certificate of registration issued by the Registrar of Trade Marks under the Trade and Merchandise Marks Act, 1958. The appellants were also an SSI unit duly registered with the Dte. of Industries for manufacture of Doctors Blades as per the registration certificate dated 25-3-1994. In the circumstances, the appellants were entitled to the benefit of exemption under Notification No. 1/93-C.E. Ld. Counsel added that their right to such exemption was not affected by para 4 of the Notification inasmuch as the trade mark BONUS did not belong to another person within the meaning of the said para. Ld. Counsel challenged the finding of the adjudicating authority that the trade mark had not been assigned in toto and that the assignment was restrictive. Relying on the decision of the Calcutta High Court (Single Bench) in the case of ESBI Transmission Pvt. Ltd. v. CCE - 1997 (91) E.L.T. 47 (Cal.) which was upheld by a Division Bench of that Court in CCE v. ESBI Transmission Pvt. Ltd. - 1997 (91) E.L.T. 292 (Cal.), ld. advocate submitted that, by virtue of the Assignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia during the material period appears to be based on the following provision contained in the Assignment Deed dated 22-11-1993 executed between them and the Swiss company M/s. Ecograph A.G. ..... the assignor hereby assigns to the assignee all right, title and interest in and to the trade mark BONUS in India in respect of said goods together with the goodwill of the business in which the trade marks is being used with effect from the 26th day of April, 1993 the date of execution of the joint venture agreement . Under the above provision of the Asssignment Deed, the Swiss company assigned all rights, title and interest in the trade mark BONUS in India, in respect of the product namely Doctor Blades , to the appellants w.e.f. the 26th day of April, 1993. On the basis of such assignment, the appellants applied for registration of the trade mark. The trade mark was registered in the name of the appellant-company w.e.f 11-3-94 in respect of the aforesaid goods as per the certificate of registration issued by the Registrar of Trade Marks on 31-7-2000 under Section 23 of the Trade and Merchandise Marks Act, 1958. A copy of this certificate has been brought on record by the adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of this trade mark in his own name. So far as India is concerned the trade mark belongs to the petitioner. The Central Excise Act is applicable throughout the territory of India only. The petitioner is using its own trade mark in India and not of somebody else. Therefore, the allegation that the petitioner is using somebody else s trade mark militates against the provisions of the Trade Merchandise Act, 1958 which are applicable throughout the territory of India. 6. Under the Assignment Deed, the foreign company permitted the appellants to use the trade mark practically as owners thereof in India and the latter obtained registration of the trade mark in their own name w.e.f. 11-3-1994. From that date onwards, by virtue of the provisions of Section 28 of the Trade and Merchandise Marks Act, the appellants acquired exclusive right to use the trade mark in India in relation to the aforesaid product, in respect of which the trade mark was registered. The provisions of Trade and Merchandise Marks Act provided safeguards to the appellants even against infringements of the trade mark by the foreign company who originally owned the trade mark. In other words, the appellants alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 11-3-1994. The SCN allegation that the appellant concealed/suppressed the factum of use of another s brand name, from the Department, in relation to the period prior to 11-3-1994, could not be rebutted by them. We, therefore, hold that the demand of duty on the goods cleared during the period November, 1993 to 10-3-1994 is not barred by limitation. The extended period of limitation under the proviso to Section 11A(1) of the Act was rightly invoked to demand such duty, the allegation of suppression having stood proved in relation to the period. 8. The appellants have also made a case with reference to the assessable value of the goods. They have pleaded that the price at which the appellants had sold the goods should be treated as cum-duty price and, therefore, the Excise duty should be deducted from the price for arriving at the assessable value. They have also made a case for deducting the value of the goods exported during the material period from the total clearance value for purposes of quantification of the duty demand. These submissions, we note, have not been properly appreciated by the adjudicating authority and, therefore, the same ought to be considered afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
