TMI Blog2003 (4) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants, registered SSI Unit, are manufacturing since 1987 different varieties and grades of pickling preparations for metal surface, both in the form of powder and liquid; that they have their name as brand name along with logo which are used by them in their sign board, visiting cards, letter head, etc., also; that the Commissioner, under the impugned Order, has disallowed the benefit of Notification No. 1/93-C.E., dated 28-2-93 and confirmed the demand of duty and imposed equivalent amount of penalty on the ground that they were using the brand name of Kemfin Industries. The learned Advocate, further, submitted that the Appellants are not using the brand name of another person; that Kemfin is not registered in the name of Kemfin Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention is contrary to the provision of Trade and Merchandise Act, 1999; that the Appellants have been using the mark in question for more than 15 years and such mark and use was co-existing with the mark and use of Kemfin Industries; that further, there is acquiescence of Kemfin Industries in such co-existence; that Kemfin Industries had not objected to the use of mark by the Appellants; that more over volume of sale by the Appellants has been consistently more than the volume of sale of Kemfin Industries and in these circumstances Section 24 of Trade and Merchandise Act confers ownership on all such users of the mark; that Section 12 read with Section 33 confers on them the ownership over the mark they have been using; that accordingly K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Appellants therein were bearing their own brand names and the goods were being marketed under those brand names. He also pointed out that in the present case the Appellants are mentioning the brand name Kemfin in the same style as being done by Kemfin Industries. He relied upon the decision in the case of CCE, Delhi v. Ajay Footwear (I) Ltd., 2001 (129) E.L.T. 704 wherein the Tribunal disallowed the SSI exemption as the Respondent was affixing the brand name belonging to a different group company. He also relied upon the following decisions :- (1) Chopra Appliances v. CCE, Delhi - 2001 (132) E.L.T. 95 (T) wherein the Appellants were using the word A SKN Product and the Tribunal has held that the use of these words clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances available in each case. In VI John Beauty Tech case, it was not disputed that the Appellants therein were marketing their products under their own brand names which is not so in the present matter. No doubt the Appellants therein had printed words VI John in their name in bold conspicuous letters but the fact remains that all the products manufactured by them were bearing their own brand name. We also observe that the Appellants have mentioned Kemfin with trade mark in the same manner as has been done by Kemfin Industries. The learned D.R. has also pointed out to the photograph of Jar containing Kemphos manufactured by the Appellants wherein the brand name Kemfin is mentioned without the name of the Appellant-compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission that on account of long use and acquiescence of Kemfin Industries they have also become the owner of the brand name Kemfin . This submission may be a defence by the Appellants in an action for infringement of brand name under Trade and Merchandise Marks Act and the fact whether they have become the owner or not has to be determined by the competent authority under the said Act. Nothing has been brought on record to show that such determination by the competent authority has been made and the ownership of the brand name has been conferred on the Appellants. We, therefore, hold that the Appellants are not eligible for the benefit of the SSI exemption notification as the excisable goods manufactured by them bear the brand name of anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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