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M/s Kusum Foundry & Metal Works (P) Ltd. Versus CCE, Indore

2016 (3) TMI 264 - CESTAT NEW DELHI

SSI Exemption - Manufacture and clearing dutiable goods with the brand name or trade name of another person - denial of exemption under Notification No. 1/1993-CE (NT) dated 28/3/1993, as amended - Held that:- The Managing Director of the appellant company had confirmed that they have been clearing hubs and drums which is further confirmed from the balance sheet for the relevant period. The fact has been confirmed further by the statement of the Production Supervisor. These were corroborated by .....

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appellants have cleared during the impugned period goods with brand name which was not owned by them and as such are liable to Central Excise duty as SSI exemption will not be available to them. We find in the present appeal, the appellant is not able to bring in any point for consideration to interfere with the impugned order.

Regarding the communication received from Trade Marks Registry, it is to be noted that the same is regarding the application of Section 9 of the Trade Marks .....

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rized Representative (DR) ORDER PER. B. RAVICHANDRAN :- The present appeal is against order dated 19/2/2007 of Commissioner (Appeals), Indore. The appellants are engaged in the manufacture of brake drums, hubs and drums, and trolley drums etc. and castings thereof, liable to Central Excise duty. They have their own brand name - KFMW . The officers conducted certain verification in the unit of the appellant in January 1997 and found 295 machined pieces of hubs and drums with B Gwalior markings an .....

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ect of goods bearing at brand name or a trade name [registered or not, of another person]. The proceedings concluded in order-in-original dated 16/3/1998. On appeal, the Commissioner (Appeals) vide his order dated 6/1/2000 dismissed the appeal for failure to pre-deposit, the duty and penalty. On further appeal, the Tribunal vide final order No. E/A/395/2000-NB dated 31/3/2000 remanded the matter to Commissioner (Appeals) for a fresh decision. Commissioner (Appeals) vide his order-in-appeal dated .....

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3,71,805/- and imposed equal penalty. He also ordered confiscation of seized goods and allowed the redemption on payment of fine. On appeal, vide the impugned order dated 19/2/2007, the Commissioner (Appeals) upheld the original order. However, on quantification of duty he allowed the re-calculation to be made considering the value as cum duty price. He reduced the penalty to ₹ 1,00,000/- in terms of Rule 173Q. 2. Aggrieved by this order, the appellant is before us. 3. The learned Counsel .....

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lish that the appellants used the brand name owned by others. She also submitted communication from Trade Marks Registry with reference to two brand names National and Goodwill . The Trade Mark Registry in their communication stated that the said marks, prima facie, inherently not capable of distinguishing the goods/ services mentioned in the request within the meaning of Section 9 of Trade Marks Act, 1999. The learned Counsel pleaded that it is clear that these names cannot be considered as Tra .....

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rector and the Production Supervisor of the appellant company. The different customers also categorically stated that they have been buying Break Drums, Tractor Trolley, Hubs with their (customers) brand name from the appellant. The Department has categorically established by way of physical goods and corroborative statements that the appellants are engaged in the manufacture of dutiable items with the brand name of other persons. Regarding the appellant s plea that these signs/wordings are not .....

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rand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identify of that person . 6. The Managing Director of the app .....

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