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2016 (1) TMI 432 - CESTAT CHENNAI

2016 (1) TMI 432 - CESTAT CHENNAI - TMI - Denial of SSI exemption under Notification No. 8/2003-CE dated 01.03.2003 - Use of other's band name - interest under Section 11 A (1) and 11 AB of the CEA, 1944 and imposed penalty under Rule 25 of CER, 02 - Held that:- Since the Apex Court has settled the issue of using the brand name and trade name in the appellantís own case, by respectfully following the Apex Courtís decision [2015 (6) TMI 226 - SUPREME COURT], we hold that the appellants are using .....

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l Member And Shri P.K. Choudhary, Judicial Member For the Petitioner : Ms. Sridevi, Adv., For the Respondent : Shri L. Paneer Selvam, AC (AR) ORDER Per: P.K. Choudhary All the 13 appeals are taken up together for disposal, as the issues involved in these appeals are identical in nature. The appellants are manufacturers of Aerated Water and soft drinks under the brand name of Kali Mark . They marketed various flavours in the name of Kali Kola , Bovonto , Solo , Frutang , Captain , Trio , Club So .....

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he appellants. Hence, the present appeals. 2. The brief facts of the cases are that M/s. Kali Aerated Water Works was founded by P.V.S.K. Palaniappa Nadar in the brand name and trade mark of Kali Mark in the year 1916 and established factories in various places viz, Virudhunagar, Madurai, Madras, Trichy, Kumbakonam, Erode and Salem in Tamil Nadu. All the 13 appeals against the corresponding OIAs and the period of dispute and duty and penalty imposed in each OIAs are listed below:- S. No. Appeal .....

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197/10 -do- 8/10 dt. 29.01.10 Nov, 02 to May,05 2,97,583 2,97,583 7 286/10 -do- 68/10 dt.23.03.10 01.04.07 to 16.10.07 70,916 70,916 8 507/10 -do- 78/10 dt. 28.05.10 Nov,07 to Feb,08 & Apr,08 to Jul,08 20,95,251 20,95,251 9 635/10 -do- 138/11 dt. 17.08.10 Aub,08 to Mar,09 4,83,678 4,83,678 10 245/11 -do- 30/11 dt.28.02.11 01.04.09 to 22.07.09 12,35,955 3,00,000 11 259/11 -do- 143/11 dt. 22.3.11 01.04.09 to 09.07.09 34,138 34,138 12 260/11 -do- 145/11 dt. 22.03.11 01.04.08 to 22.08.08 83,018 .....

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ntinued the business in the name of Kali Aerated Water Works with the name of the place suffixed. They used the brand name concurrently without registration in the name of the owners of such independent units. Shri K.P.R. Sakthivel, Proprietor of the Madras unit got registration of the brand names vix., Kali Mark, Kali, Bovonto, Frutange etc. in his name from the Trade Mark Registry. Consequently, there was a family MOU dated 12.03.1993, mentioned the area of their business as well as using the .....

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order of the Tribunal, the assessees preferred Civil appeal No. 3611 and 4387-4392/2005 before the Honble Supreme Court and the Hon ble Supreme Court vide order dated 13.05.2015 in the case of Kali Aerated Water Works Vs. CCE, Madurai reported in 2015 (320) ELT 692 (S.C.) allowed their appeals. She produced the copy of the Hon ble Supreme Court order and submits that out of 13 appellants, 12 appellants have paid the entire duty demand under protest. She prays to set aside the OIAs with conseque .....

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r the said notification. 5. We have carefully considered the submissions from both sides and perused the records, Tribunal s Order in the assessee s own case (supra) and the Honble Supreme Court order in the assessee s own case (supra), we find that the Bench had discussed the issue in detail and denied the SSI exemption benefit and allowed the Revenue appeal. In this regard, we find that the Hon ble Supreme Court in the appellant s own case (supra) set aside the order of the Tribunal and held .....

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carrying out to the future generations, a meeting was held among the parties herein, who are the direct male lineal decedents and users of established abovesaid Trademarks and who at present have interest in various factories being run in the name of Kali Aerated Water Works in various parts of Tamil Nadu and discussed the pros and cons and also to preserve the established Trade Name and Trade Marks throughout the future generation and agreed on certain terms and conditions and all the parties h .....

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ons of Trade and Merchandise Mark Act, 1958 or any other common law in which suitable an effective remedies are provided. (M) In any party falls to initiate legal action against such erring persons in order to protect the Trade Mark and Trade name, then any other party can take action against such defaulting parties as well as against the person committing such infringement, passing off or imitation for suitable remedy. (N) For removal of doubts, it is clarified specifically that the right to us .....

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dents wants to close down the business they shall have to either sell their rights of Trade name and Trade Marks to other remaining parties or to their male lineal descendents only. Such parties shall acquire the rights subject to the terms and conditions of this Agreement and are liable to exercise their rights within the terms of this Mutual Agreement. 4. It is clear from the above that the trade name Kalimark Aerated Water Works and trade mark mentioned in the said agreement would remain ve .....

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my attention to the certificates issued by the Trade Mark Registry from the year 1948 to 1985 which were filed before the lower authority. I find the appellant s name also figures in the certificates issued in the year 1962 and 1970 when he became one of the partner of the erstwhile HUF Firm. The appellant have been marketing his products only within his own marketing area. It is not the case of the Revenue that any other person is using the same Brand names in the same area. Similarly the appe .....

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t. I have read the entire contents of Mutual Agreement. I find that Mr. K.P.R. Sakthivel is also a party to the said Mutual Agreement and no royalty is also payable to the said K.P.R. Sakthivel. Even Mr. K.P.R. Sakthivel has specifically agreed that he cannot use the brand name in the marketing area of the appellant. Thus there seems to be recognition of individual proprietary rights over the brand names within the respective specified marketing area. The nature of succession of the proprietary .....

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