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M/s Parag Enterprises, Shri Ashok Kumar Gupta, Authorised Signatory, Shri Rajesh Sisodia, Ex-Authorised Signatory Versus C.C.E., Kanpur

2015 (8) TMI 344 - CESTAT ALLAHABAD

SSI Exempiton - whether brand name TEGU, registered in the name of the appellant in India, is not sufficient to claim exemption of Notification No. 8/2003-CE dated 01/3/2003 when the same belongs to a German company - Penalty u/s 11AC - Held that:- Appellant M/s Parag Enterprises is the registered owner of the Trade Mark TEGU in India. - On the issue of admissibility of Small Scale exemption to registered owner of a brand name in India it is observed that the same is no more res-integra - Decisi .....

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ting aside OIA No. 319-CE/APPL/KNP/2006 dated 26/7/2006 under which First Appellate Authority has allowed the appeal filed by M/s Parag Enterprises (respondent in appeal No. E/3474/2006). Appeal No. E/3509/2006 has been filed by the main appellant M/s Parag Enterprises against OIO No. 19/Commissioner/MP/2006 dated 31/7/06 under which Adjudicating Authority has confirmed a demand of ₹ 30,40,894/-, alongwith interest, and also imposed equivalent penalty under Section 11AC of the Central Exci .....

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terprises and others, argued that his clients are manufacturing Liquid Shoe Finish and Liquid Shoe Polish bearing a brand name TEGU, which is the brand name of M/s TEGU Chemische Fabrik Theysohn, Germany. That officers visiting the factory on 13/1/2005 seized finished goods, bearing brand name TEGU, worth ₹ 5,04,762/- on the grounds that his clients are not eligible for exemption under Notification No. 8/2003-CE dated 01/3/2003 for clearing branded goods of another person. That seized good .....

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sohn, Germany has also certified that TEGU is not a registered trade mark of their company. 2.1 Learned (Advocate) further argued that after detailed investigation another show cause notice dated 02/5/2006, followed by Corrigendum dated 04/7/2006, was also issued on the same issue to the main appellant and others demanding duty of ₹ 30,40,894/- for the period 2001-2002 to 2005-2006 which was adjudicated by Commissioner, Central Excise and Customs, Kanpur under OIO No. 19/Commr/MP/2006 date .....

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rned Advocate also relied upon the following case laws to argue that certificate dated 23/12/2005 will be effective from 19/1/1996 and on the same issue appeals have been allowed in favour of assessees :- (i) Whale Stationary Products Ltd. vs. CCE, Meerut reported in 2004 (168) E.L.T. 405 (Tri. Del.) ; (ii) Laxmi Industries vs. CCE, Rajkot reported in 2013 (298) E.L.T. 435 (Tri. Ahmd.) ; (iii) Northern India Tiles Corporation vs. CCE, Delhi II reported in 2013 (293) E.L.T. 372 (tri. Del.) ; (iv) .....

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ara Agro Equipments Pvt. Ltd. vs. CCE, Aurangabad reported in 2007 (214) E.L.T. 121 (Tri. Mum.) ; and (x) ESBI Transmission Pvt. Ltd. vs. CCE reported in 1997 (91) E.L.T. 47 (Cal.). 3. Shri R.K. Mishra, learned AR appearing on behalf of the Revenue argued that both the Adjudicating Authorities have held that certificate dated 23/12/2005 issued Trade Marks Registry is for artistic work and not a transfer of brand name. That there is no agreement between the appellant and the Germany Company regar .....

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ured goods. Learned AR also relied upon the case law of CCE, Trichy vs. Rukmani Pakkwell Traders [2004 (165) E.L.T. 481 (S.C.)] in support of his arguments. 4. Heard both sides and perused the case records. The issue involved in these proceedings is whether brand name TEGU, registered in the name of the appellant in India, is not sufficient to claim exemption of Notification No. 8/2003-CE dated 01/3/2003 when the same belongs to a German company. Learned AR has relied upon the case law of CCE, T .....

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s 19/1/1996 in the proceedings before us. 4.2 On the issue of admissibility of Small Scale exemption to registered owner of a brand name in India it is observed that the same is no more res-integra. Hon ble Calcutta High Court in the case of ESBI Transmission Private Ltd. vs. CCE [1997 (91) E.L.T. 47 (Cal.)] held as follows with respect to paragraph 7 of small scale exemption Notification No. 175/86-CE dated 01/3/1986 :- 9. The main charge in the show cause notice is that M/s. ESBI Transmissions .....

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the said company VULCAN has been got registered by M/s. ESBI Transmissions Pvt. Ltd., 8, Camac Street, Calcutta-700017, under the Trade & Merchandise Marks Act, 1958 (43 of 1958) and the use of the name VULCAN/VULCAN-type couplings, by virtue of an assignment and thus, the exclusive right to manufacture, sell offer for sale, supply and/or distribution of VULCAN/VULCAN-type couplings and spares by any other firm in India other than the assessee, is illegal. In this connection it is stated tha .....

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on. Since VULCAN COUPLINGS of Germany are not entitled to SSI benefits by virtue of being a foreign company, hence the benefit of Notification No. 175/86-C.E. would not be available to M/s. ESBI Transmissions Pvt. Ltd., in respect of the diaphragm couplings (flexible) in question affixed with the brand/Trade name VULCAN of a foreign manufacturers and hence the said goods attract full effective rate of duty at 20% ad valorem (Basic) Plus 10% special on basic. 10. There is no dispute that the peti .....

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es the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. 11. It has been contended on behalf of the respondents that the said foreign company has not objected to the use of their Trade name mark Vulcan which has been registered by M/s. ESBI Transmissions Pvt. Ltd., 9, Camac Street, Calcutta-17 under the Trade & Merchandise Marks Act, 1958 (43 of 1958). The use of the name VULCAN/VULCAN .....

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goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. Since Vulcan Couplings of Germany are not entitled to SSI benefits by virtue of being a foreign company, hence the benefit of Notification No. 175/86-C.E. would not available to M/s. ESBI Transmissions Pvt. Ltd., in respect of the diaphragm couplings (flexible) in question affixed with the brand/Trade name Vulcan of a foreign manufacturer and hence .....

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f exemption under the aforesaid notification. It has been rightly contended on behalf of the petitioner that the petitioner has used a brand name of its own and of which it is the registered owner. In such a situation the provisions of Clause 7 of the aforesaid notification will not apply to the case of the petitioner. 13. In my judgment the contention made on behalf of the petitioner must be upheld. 14. The petitioner is the owner of the registered trade mark Vulcan. By virtue of the provisions .....

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ny other person having any right to the trade mark in respect of these products. In view of this position in law it is not open to the respondents to contend that the petitioner was using the brand name or trade name registered or otherwise of some other person. The petitioner was using its own registered brand name or trade name Vulcan. By virtue of the provisions of Section 28 of the Trade & Merchandise Marks Act, 1958 the petitioner acquired the exclusive right to use the trade name Vulca .....

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