TMI Blog2010 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 - Ms. Archana Wadhwa, Member (J) and Shri S.K. Gaule, Member (T) REPRESENTED BY : Shri P.P. Jadeja, Consultant, for the Appellant. S.K. Mall, SDR, for the Respondent. [Order per : S.K. Gaule, Member (T)]. - Heard both sides. 2. Revenue is in appeal against Order-in-Appeal No. 122 to 123/2006 (Ahd-II)CE/DK/COMMR(A), dt. 31-3-06. The issue involved in both the appeals is common and therefore they are taken together for disposal. 3. Briefly stated, facts of the case are that the proceedings were initiated against the respondents on the ground that they were manufacturing and clearing "Plaster of Paris" bandage B.P., Elastic Adhesive Bandage B.P., and Cotton crepe bandage B.P. under the brand name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent will not willingly or unwillingly sale or promote the brand name 'SARCAST' without written consent of SAR, which implies that SAR who is having authority for the use by virtue of above clause is having control over the brand name even though the said brand name is not registered. 5. The contention of the respondent is that Commissioner (Appeals)'s order is well reasoned order, which has considered all aspects of the case and does not require any interference. Revenue's appeal does not involve any question of law which has not been decided in appeal in view of the SSI notification and the case laws. The contention is that Revenue's allegation that they have used brand name of others, but the onus to prove is on Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... willingly sell or promote the brand 'SARCAST ' without the written consent of SAR, whereas on enquiry by the department, M/s. Sar Medilink (P) Ltd. New Delhi vide letter dt. 4-6-01 had certified that the brand name 'SARCAST' was not registered with any Drug or Govt. Agency till date in our name. Further, M/s. Sar Medilink (P) Ltd. vide letter annexed to appellant's letter dt. 13-8-01 has certified "that we are marketing of Plaster of Paris Bandage manufactured by M/s. Gujarat Health Care, Ahmedabad and SARCAST is not our brand but it is exclusively of M/s. Gujarat Health Care, Ahmedabad". I find that when the alleged owner M/s. Sar Medilink (P) Ltd. of brand name SARCAST has denied the ownership of the said brand, the Department was require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n brand name in Nepal are not adequate to deny exemption. The denial of SSI exemption on the ground that the appellants were using the brand name of other. In view of the above. I hold that the department had failed to establish the ownership of brand SARCAST. The denial of exemption on the ground that the appellants were issuing the brand name of other person on the basis of mere statement of partner of the appellants is not sustainable particularly when the alleged so called brand name holder M/s. Sar Medilink (P) Ltd. had already denied the ownership of SARCAST brand name. Further, it cannot be conclusively concluded from the contract clause (f) between the appellants and M/s. Sar Medilink (P) Ltd. that the brand name SARCAST was belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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