TMI Blog2015 (2) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... r further states that they are withdrawing the said trade mark application. We note that this letter of M/s. Bharat Cafi Pvt. Ltd. very clearly indicates that during the period from 22.09.2005 to 19.04.2011 the said brand name belongs to them. The period of dispute in the present case is from October 2005 to 16.07.2007 and even the advertisement was made on 1.8.2007. - no hesitation in holding that the said brand name belongs to M/s. Bharat Cafi Pvt. Ltd. during the material period. After the said letter Proprietor of the appellant Co. was summoned but he did not respond on some or the other pretext and it was after collecting the detailed information the Revenue officer took further steps in the investigation during 2007. Thus the said letter was sent to the department during the course of investigation of the case and therefore the appellant cannot claim that he had informed the department. We also note that in the said letter it clearly suppresses the fact that brand name of Ribbons and Balloons belongs to M/s. Bharat Cafi Pvt. Ltd., and appellant is using the same consequence to a deed of agreement. We are in agreement with the learned A.R. s contention that the Proprietor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocolates. Appellant is selling these products through their franchisees. All the products are being sold under the brand name Ribbons Balloons . Most of the products carry the brand name and in some of the products when the goods are dispatched to the franchisees, the same are in bulk pack, the franchisees are selling the same with the above mentioned brand name. Further the franchisees have exclusive outlets and they indicate Ribbons and Balloons as their name. The appellant started manufacturing the above mentioned product from October 2005. The dispute in the present case relates to the period October 2005 to 16.07.2007. The appellant was clearing the above mentioned excisable goods by availing SSI Exemption. Revenue s case is that the brand name Ribbons and Balloons is owned by M/s. Bharat Cafi Pvt. Ltd. and therefore the brand name does not belong to the appellant and they are not entitled to claim the benefit of SSI Exemption under Notification No.8/2003 dated 01.03.2003 as amended. A demand notice was issued to the appellant on 03.06.2009 invoking extended period of limitation. The same was adjudicated by the original authority wherein a demand of ₹ 35,44,512/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Knitting Machinery Co. v. Commissioner 2003 (158) ELT 499 (Tri.Del). (f) Bonny Baby Care Pvt. Ltd. 2014 (02) LCX0013. It was further submitted that no penalty is imposable in view of the Tribunal s judgement in the case of Election Industries Ltd. vs. CCE 2014 (05) LCX0052. 3. Learned A.R. on the other hand argued that there is no dispute about the fact that M/s. Bharat Cafi Pvt. Ltd. had applied for registering the above mentioned trade mark in respect of commodities in question on 22.09.2005 and a provisional certificate was issued to them. Further the above mentioned trade mark was assigned to the appellant by an Agreement dated 21.09.2005 between the appellant and M/s. Bharat Cafi Pvt. Ltd. The said documents very clearly brings out that the said brand name belongs to M/s. Bharat Cafi Pvt. Ltd., and not to the appellant. Learned A.R. quoted the Hon ble Supreme Court s decision in the case of CCE vs. ACE Auto Comp. Ltd. 2011 (263) ELT 3 (S.C.), CCE Trichy v. Rukmani Pakkwell Traders 2004 (165) ELT 481 (S.C.) and CCE v. Mahaan Dairies 2004 (166) ELT 23 (S.C.) and he stated in view of the above decisions there can be no doubt that the appellant was using the brand name an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two partners deceased and in those circumstances, the Tribunal has taken a view that the appellant is the owner of the trade mark. In the present case Nharat Cafi Pvt. Ltd. is a Private Ltd. Company and was existing at the relevant time and even today therefore the case law is not relevant. Similarly other case laws are of no consequence. 4. We have considered the rival submissions. 5. The undisputed fact in the present case are that the goods manufactured by the appellant were being sold with the brand name of Ribbons and Balloons which belong to M/s. Bharat Cafi Pvt. Ltd. The point advanced by the learned Counsel for the appellant is that M/s. Bharat Cafi Pvt. Ltd., were neither manufacturer nor seller nor are trader and therefore cannot be said that the said brand name belongs to them. We are not impressed with this argument. Undoubtedly M/s. Bharat Cafi Pvt. Ltd. has applied for the registration of the brand name with the Trade Mark authorities and the said application was made on 22.09.2005. The said application is for the commodities being manufactured by the appellant. Further the said Company has passed a resolution on 20.09.2005 to assign the said brand name t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 8/2003. 7. We have carefully gone through the case laws quoted by the appellant. We find that the facts in those cases are very different and are distinguishable from the facts in the present case. We do not consider it necessary to discuss each of these cases. 8. The other argument of the learned Counsel was that extended period of limitation is not invokable as they have informed the department vide letter dated 13.6.2006 that they are manufacturing under the brand name Ribbons and Balloons . We have gone through the said letter. This letter was in pursuance to the visit of the Central Excise Officers to the said unit. We also find that after the said letter Proprietor of the appellant Co. was summoned but he did not respond on some or the other pretext and it was after collecting the detailed information the Revenue officer took further steps in the investigation during 2007. Thus the said letter was sent to the department during the course of investigation of the case and therefore the appellant cannot claim that he had informed the department. We also note that in the said letter it clearly suppresses the fact that brand name of Ribbons and Balloons belongs to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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