TMI Blog2010 (6) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... 997. 4. It is a case of the Appellants that, departmental officers detected that the brand name Diamond belonged to another company, viz., M/s. Mysore Cements Ltd. and it was duly registered in favour of the said Company with the Registrar of the Trade Marks under the Trade Merchandise Marks Act, 1958 and that the respondents were not entitled to claim exemption under the said notification as amended, since the said notification could not have been applied to the specified goods bearing the brand name or trade mark of other persons. 5. Consequently, a Show Cause Notice dated 10th November, 1997 came to be issued to the respondents which was contested by the respondents and ultimately the Deputy Commissioner, Meerut, dropped the proceedings holding that, there was some difference in the logo used by M/s. Mysore Cement Ltd. and one used respondents. In the logo of M/s. Mysore Cement Ltd., only one crown was used, while respondents were using one big crown on the top of their brand name and two small crowns on either sides of the big crown and that the said difference in logo was sufficient to entitle to claim the exemption under the said notification. 6. Being aggrieved, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background of those facts, it was necessary for the appellant to bring on record positive evidence regarding the suppression of fact or any mis-statement on the part of the respondents or that the respondents had played any fraud. In the absence of any such evidence, the department had no authority to invoke extended period of limitation. Being so, according to the ld. Advocate for the respondents, even assuming that the respondents have no case on merits, it was within the knowledge of the appellant that the respondents had been using brand name of another person for the said period and, therefore, the proceedings were clearly barred by limitation. On this ground itself, there is no case for interference in the impugned orders. 8. The ld. Advocate for the respondents has drawn our attention to the decision of the Tribunal in the matter of Prakash Udyog Samiti v. CCE, Kanpur, reported in 2006 (199) E.L.T. 159 and CCE v. Fine Industries, reported in 2002 (146) E.L.T. 53, while contending for the respondents were under bona fide belief that the brand name did not belong to any other cement manufacturer, besides that mere similarity in the logo would not justify the action against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aan Dairies case while reiterating the decision in Rukmani Pakkwell s case, it was held that even if the goods are different so long as the trade name or brand name of some other company is used, the benefit of the notification would not be available. Further, in our view, once the trade name or a brand name is used, then mere use of additional words would not enable the party to claim the benefit of the notification. It was further ruled that it is settled law that in order to claim benefit of a notification a party must strictly comply with the terms of notification. If on wordings of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. These judgments were further followed in Em Kay Investments Pvt. Ltd. s case. Being so, as far as the merits of the case is concerned, as fairly submitted by the ld. Advocate for the Respondents, the decision arrived at by the lower authorities cannot be sustained. 11. Ld. Advocate for the respondents, however, submitted that, merely because the judgment cannot be sustained on merits, that itself would not be a justification for inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brand name or trade name (registered or not) of another person and that they were claiming the benefit of exemption under the said notification. Records do not disclose the above facts having been ever disputed by the respondents. It was also stated in the show cause notice that market survey had disclosed that the brand name Diamond was registered trade mark of M/s. Mysore Cement Ltd. and the said company was using the same name on their products. 16. Section 23 of the Trade and Merchandise Marks Act, 1958 provides that, when an application for registration of a trade mark has been accepted, then the Registrar shall register the said trade mark in the respective register and trade mark when registered shall be registered as on the date of the making application in the same and that date shall, subject to the provisions of Section 131 of the said Act, be deemed to be the date of registration. Section 131 relates to the provision relating to the application for registration from citizens of convention countries. 17. Section 125 of the Trade and Merchandise Act, 1958 provides that every register maintained under the Act and entries made therein shall be open to the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the records relating to such registration become public and every member of public is entitled to have access to the same. At the same time, it is undisputed fact that the assessee, in order to claim the benefit under the said notifications is required to make a specific declaration that the brand name which is being used by him does not belong to any other person as use thereof by any other person disentitles the assessee to claim the benefit under the said notification. It is a matter of record. That the respondents did file declaration inspite of availability of access to the registration regarding the brand name in favour of M/s. Mysore Cement Ltd., and inspite of obligation of the respondents to disclose true, correct and complete facts, the respondents did not disclose the fact that the brand name belonged to M/s. Mysore Cement Ltd. As already observed above, therefore, the contention of bona fide belief cannot be accepted. When the law requires registration is to be made in relation to the brand name, in order to claim the benefit under the notification, it is obligatory for the assessee to give complete and true facts. It is expected from the assessee to ascertain as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the requirement of clause IV of the notification. Clause IV dis-entitles the manufacturer to claim exemption in case he uses brand name of another person. It is pertinent to note that brand name may be registered or not. In the case in hand, the brand name was duly registered in favour of M/s. Mysore Cement Ltd. As already seen above, there is no justification disclosed for harbouring the belief that the brand name did not belong to any other cement company. It was registered trade mark and the respondents could have very well ascertained the same from the public records. There is nothing to show that any efforts were made in that regard by the respondents before submitting the declaration and claiming exemption. This obviously discloses suppression of relevant fact with intent to evade duty. Hence the facts referred to above and considered while arriving at the finding about the suppression of relevant fact disclosed positive act on the part of the respondents in that regard which enabled the department to invoke extended period of limitation. For the reasons stated above, we do not find any substance in the arguments canvassed on behalf of the respondents regarding absence of m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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