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TMI Blog2017 (6) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... to their factory premises in New Delhi on 27.07.1998 and found out that 'ALASKA' brand was not owned by assessee-appellant but belonged to M/s. Vinko Auto Industries Ltd. Jalandhar. (iii) The appellants were issued a show cause notice (SCN) dated 14.9.1998 which was adjudicated vide order in original dated 29.1.1999 confirming the demand of Central Excise duty along with equal penalty. The assessee went in appeal before Commissioner (Appeals) who vide order dated 6.8.01 upheld the confirmation of demand of duty and penalty. (iv) Assessee came in appeal before CESTAT. CESTAT vide its order dated 13.62002 upheld the order of lower authorities. The assessee went in appeal before Hon'ble Supreme Court who remanded the case back to the Tribunal for re- appreciation of the evidence before deciding the issue raised. (v) On remand from the Supreme Court, CESTAT took up the matter afresh and issued Final Order No.677-678-CX dated 22.8.2005 setting aside the order of Commissioner (Appeals), sent the case back to the original adjudicating authority for fresh decision. (vi) The original adjudicating authority vide order in original No. 62/2008-09 dated 9.1.2009 reconsidered the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise officers, paid a visit in the said Unit on 27.7.99 and found them engaged in the manufacture of rice rubber rolls and rice polishers in the brand name 'ALASKA' being the brand name not owned by them. The fact about ownership of the brand name by "ALASKA" by M/s. Vinko Auto Industries Ltd., Jalandhar was duly disclosed by them but the fact about signing of any agreement in between, by appellant and the brand name owner in the year 1998 was not disclosed by them to the Excise Officer. So, in the intervening period the situation remains that unless they do not get approval of the Trade Mark authority, the situation would have been that they were using the brand name ALASKA as of not owned by them and thus fall within the mischief of using brand name of other person. In such a situation, they would have been liable to duty at tariff rate and benefit of SSI would not have been available to them. Therefore, I find that during the period for which the demand has been raised, they were not in acquisition of brand name in their favour and therefore, the very order passed by the adjudicating authority in this context is proper and fair. So far as issue connected to maintainability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated that the brand name 'ALASKA' was being used by them for the last 30 years and is owned and registered in their name and further stated that they were claiming SSI benefit till 1996- 97 on the branded goods 'ALASKA'. Both Shri Ravi Gupta and Shri Madhu Sudan stated that they were aware that their statement could be used in any court of law as an evidence. 20. The statement of Shri Ravi Gupta and Madhu Sudan were recorded under section 14 of Central Excise Act, 1944 on 27.08.1998 and 01.09.98 respectively and the assignment deed between M/s. ALASKA Tyres Pvt. Ltd. and M/s. Vinko Auto Industries Ltd., Jalandhar was made on 01.07.96 which is very much before the date of the statements. It is very much surprising and unbelievable that both of them i.e. transferor and transferee were unaware about a major business incident which occurred between them before their statements and they were totally unaware about the assignment deed at the time when case was booked and investigation were going on. Further, the party filed an application for registration for the brand name 'ALASKA' in the office of the Registrar of the Trade Mark on 14.09.98 which is also date of impugned SCN. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... watches in Switzerland. Before the Deputy Registrar and before Mr. Justice Shah, proprietorship was claimed on the basis that the applicant was entitled to it as an importer's mark. Several authorities were cited and were considered and principles deduced and relied upon in that behalf. In our opinion, it is not necessary in this case to go into details about facts in the various decided cases dealing with importer's marks. In many of those cases, the dispute was between a foreign trader using a foreign mark in a foreign country on goods which were subsequently imported by Indian importers and sold by them in this country under that very mark. In short it was a competition between a foreign trader and the Indian importer for the proprietorship of that mark in this country. We have already reached a conclusion that so far as this country is concerned, Degoumois & Co. have totally disclaimed any interest in the proprietorship of that mark for watches etc. In India, the mark "Caltex" was a totally new mark for watches and allied goods. The applicant was the originator of that mark so far as that class of goods is concerned, and so far as this country is concerned. He in fact used it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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