TMI Blog2007 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... s matter was once decided by the Tribunal against the appellants and appellants preferred an appeal to the Hon'ble Supreme Court [2006 (197) E.L.T. 322 (S.C.)], wherein Hon'ble Supreme Court has remitted the matter for limited purpose by observing as under :- "The determination of this question is crucial for deciding the eligibility of the assessee-company to get the benefit of the notification in question for the aforesaid three unregistered trade marks. In the absence of such decision on the point agitated by the assessee-company, we deem it appropriate to set aside the impugned order of the Tribunal and remit the case back to the Tribunal in so far as the unregistered products, namely, Amigen, Sorgen and Sigum are concerned, for a fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of Hon'ble Supreme Court in the case of CCE v. Bhalla Enterprises as reported at [2004 (173) E.L.T. 225 (S.C.)] 4. Considered the submissions made in detail by both sides and perused the records. It is undisputed that the products having trade names "Amigen, Sorgen and Sigum" are manufactured by the appellant and they were filing the classification list and declaration to the authorities It is also on record that M/s. Dai Ichi Karkaria have also filed classification list in respect of the very same products indicating the same trade name. The question here is whether the said names "Amigen, Sorgen and Sigum" are branded products or trade names of the products manufactured by the appellant and M/s. Dai Ichi Karkaria. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine EU, Daikamine FC, Daikamin FC 30 (iv) Sorgen 60 (v) Noigen Defoamer 15A, Noigen DW 3145, Noigen ET 80, Noigen L61, Noigen LA2, Noigen OEC, Noigen PA4O (vi) Sigum F (d) That I say and submit that M/s. Dai Ichi Karkaria Ltd. had stopped manufacturing the chemicals in the above names from 1985. As of today, Dai Ichi is not manufacturing these chemicals either by them selves or getting the same manufactured from others, except Noigen group. Sorgen 80 Sorgen NP were manufactured on sample basis and sold as sample/trial in the year 1995-96. (e) I further state and affirm that M/s. Dai Ichi Karkaria is also not using the above trade name. These trade names are not at all used by Dai Ichi and have abandoned the same, except for N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs by the appellant. We find strong force in the argument of the Advocate of the appellant that the trade names have lost sheen as a trade name of a company, due to non-use by the said company. The Affidavit clearly brings out the fact that though these trade names belonged to Dai Ichi Karkaria Ltd., they had abandoned the same and they have not objected to the use of the same by the appellant for their products. This would indicate that the exclusive use of the trade mark has been given away by M/s. Dai Ichi Karkaria Ltd. since they are not using the same continuously. We find that the Hon'ble High Court of Bombay in the case of Cluett Peabody Co. v. Arrow Apparels have clearly held as under "(j) The mark can loose its distinctivenes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. As assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name". Though this case law is relied upon by the Revenue, from the above reproduced paragraph it would indicate that the said case law would be of help to the appellant before us. The ratio laid down by the Hon'ble Supreme Court in the above reproduced portion of the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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