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2015 (6) TMI 226 - SUPREME COURT

2015 (6) TMI 226 - SUPREME COURT - 2015 (320) E.L.T. 692 (SC) - Exemption under Notification 1/93-CE dated 28.2.1993 - manufacture of Aerated Water under various brand names using the trade mark with the “Kalimark” / M/s.Kali Aerated Water Works” - Use of third party brand name - Held that:- Trade name 'Kalimark Aerated Water Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The .....

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Hyderabad IV vs. Stangen Immuno Diagnostics [2015 (6) TMI 155 - SUPREME COURT OF INDIA] - Decided in favour of assessee. - Civil Appeal No. 3594 of 2005, Civil Appeal No. 361 and 4387-4392 of 2005 - Dated:- 13-5-2015 - A K Sikri And Rohinton Fali Nariman,JJ. For the Appellant : Mr. R.Venkataramani,Sr. Adv. For the Respondent : Mr. K.Radhakrishnan,Sr. Adv. Dated : May 13, 2015 JUDGMENT A. K. Sikri, J. 1. It is not in dispute that the appellant herein is a Small Scale Industrial Unit (hereinafter .....

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h belong to M/s. Shri K.P.R.Shakthivel and since the assessee is using the aforesaid brand name of the third party, by virtue of para 4 of the aforesaid Notification the exemption would not be allowed to the respondent. This stand taken by the respondent department has been accepted by the CESTAT in its impugned judgment. 2. The Tribunal has noted the fact that business of manufacture and sale of Aerated water was started in the name of Kalimark Aerated Water Works' by the HUF of which M/s. .....

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h the appellant assessee and it belongs to the other party. On this basis it arrived at the finding that the appellant has been using the trade mark/brand name of the third party. 3. We find that the aforesaid observation is against the record and contrary to the Deed of Mutual Agreement which has been entered into between the earstwhile partners. Para 9 of the recital to this family arrangement is as under: Since all the parties herein have mutually intend to carry forward the reputation and we .....

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d agreed on certain terms and conditions and all the parties herein have agreed to abide by them and hence this Deed of Mutual Agreement. 4. Thereafter, this aspect is dealt with in Paras L.M. and N thereof, which read as under: L) If any party comes to know about any infringement and passing of use of any deceptively similar mark on any imitation by any person in the market, then the party in whose area the said imitation, infringement or passing off takes place shall take immediate legal steps .....

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doubts, it is clarified specifically that the right to use the Trade name M/s. Kali Aerated Water Works and Trade Marks mentioned above are solely vested with the parties 2 to 10 herein who are the direct male lineal descendents and subject to clause 'G' herein the parties herein cannot and shall not permit or give their existing rights to any female descendents or any third person, nor the parties 2 to 10 herein have right to transfer/sell for consideration or without consideration to t .....

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Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. The discussion in the order of the Commissioner, on this aspect, .....

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er person is using the same Brand names in the same area. Similarly the appellant is not selling his goods outside his marketing area. So far his business is concerned the appellant appears to be the only legal owner of the Trade Mark within his marketing area. This has been clearly brought out in the Mutual Agreement dated 12.3.1993 which has been duly presented on 12.3.1993 itself for registration whereas the impugned Notification No.59/94 came into effect only from 1.4.1994 and hence no motiv .....

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