2006 (1) TMI 46

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..... d from November 1996 to April 2001 using the brand name 'TIP TOP' which had been registered in the name of Shri C.K. Abdul Rahiman, Bangalore for travel goods, school bags and gift articles made of PVC and leather. Hence, duty amounting to Its. 3,18,469/- was demanded. Equal penalty under Section 11AC was imposed. A penalty of Rs. 5000/- under Rule 173Q was imposed on the appellants. A personal pe .....

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..... Allergan Inc. [2004 (170) E.L.T. 260 (S.C.)] wherein it is held that the company which adopt the trade mark first in the market is entitled to use that mark and it cannot be deprived of the use of the mark. The Tribunal in the case of Galaxy Sanitary Wares (P) Ltd. v. Commissioner of Central Excise, Rajkot [2005 (189) E.L.T. 162 (Tri. - Mumbai)] has held that the first user in time will get right .....

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..... he present case. All the decisions cited by the learned Advocate, it has been held that non-declaration of brand name does not amount to suppression and therefore the larger period is not applicable. As evidence of using the brand name 'TIP TOP' right from 1980, the learned Advocate produced the deed of partnership executed between the partners in 1980 for running the business 'TIP TOP' plastic In .....

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..... that the appellants are owning the trade name 'TIP TOP' and have been using it since 1980. In any case, he said that no decision can be based on the Order-in-Appeal of Commissioner (Appeals), Chennai as the Revenue might have gone in an appeal against that order. 5. We have considered the submissions made by both the sides. In support of the plea that the appellants have been the first user of th .....

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..... nd name of another person. We are convinced that during the period of demand involved in the show cause notice, Shri C.K. Abdul Rahiman did not own the brand name 'TIP TOP', in view of the findings of the Commissioner (Appeals), Chennai. In that view of the matter, this case has no legs to stand. Consequently, the impugned order has no merit. Hence we allow the appeal with consequential relief. ( .....

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