TMI Blog2017 (6) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants had wrongly used the trade mark of M/s. Kay Aar Biscuits (P) Ltd. - the assessee- appellant is not entitled to the benefit of SSI exemption during the said period, as during the said period, the brand name ‘ALASKA’ was owned by another party, namely, M/s. Vinko Auto Industries Ltd., Jalandhar. Penalty on Shri Ravi Gupta, who is director of the assessee appellant, u/r 209 A of CER, 1944 - Held that: - Shri Ravi Gupta was found to be instrumental in preparing the assignment deed in connivance with M/s. Vinko Auto Industries, in order to evade the duty of Central Excise. Thus there has been active involvement of appellant Shri Ravi Gupta in evasion of duty of Central Excise in the present proceedings making him liable to imposition of penalty under Rule 209 A of CER, 1944 - penalty upheld. Appeal dismissed - decided against appellant. - Excise Appeal No.1062 & 1721 of 2010 - A/53657-53658/2017-EX[DB] - Dated:- 6-6-2017 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Shri A K Prasad, Advocate for the Appellants Shri H C Saini, DR for the Respondent ORDER Per : Ashok K Arya M/s. ALASKA Tyres Pvt. Ltd. is in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, we have heard all the parties involved which were represented by learned Counsels Shri A K Prasad for the appellants and Shri H C Saini for the Revenue. 4. After hearing all the parties and on perusal of the facts on record, it appears that the main issue here is ownership of brand ALASKA , during the relevant period. If during the relevant period, ALASKA brand is owned by entity other than the assessee appellant, the assessee appellant will not be entitled to the benefit of SSI exemption under notification No. 1/1993 dated 28.2.2003. 5. The main contention of the appellants is that this brand ALASKA though initially belonged to M/s. Vinko Auto Industries Ltd., which is a family concern of brother of Shri Ravi Gupta, Managing Director of the assessee, it was assigned to the assessee appellant with effect from 1.7.1996 vide assignment deed dated 1.7.1996. 5.1 However, the ground facts do not support the plea of the appellant that transfer of the ALASKA brand was made in assessee s favour effective form 1.7.1996. Revenue has all along taken a stand that during the period of investigation, no such document (assignment deed) existed and no one on behalf of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting officer in this regard are quite proper and fair. [Emphasis supplied] 5.2 Further, in this regard we refer to the observations made by original adjudicating authority in his Order-in-Original No.62/2008-09 dated 9.1.2009, which are as under: 16. As per the explanation of Notification No. 1/93 dated 01.03.1993, SSI exemption is not available on goods of brand name owned by another person. In the SCN, it is alleged that the brand name ALASKA is now owned by the party. However, the party has declared that they were not manufacturing branded goods. 17. The party produced an assignment deed dated 01.7.96 between M/s. Vinko Auto Industries Ltd., Jalandhar and M/s. ALASKA Tyres Pvt. Ltd. (the party) which was later on registered in the name of the party on 16.11.99 and therefore claimed that since the brand name ALASKA was owned by them by way of assignment deed dated 01.01.96, they were entitled for the concessional rate of duty under notification No. 1/93 dated 01.03.93. 18. The Hon ble CESTAT vide order dated 22.08.05 has remanded the case to adjudicate case afresh after examination of the assignment deed dated 01.07.96. On going through the case records p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th independent witnesses . Also, the party at as valid document for allowing the party the concessional rate of duty, under SSI benefit under Notification No. 01/93 dated 01.03.93. [Emphasis supplied] 5.3. From the above observations of the original adjudicating authority as well as appellate authority namely Commissioner (Appeals) and after careful consideration of facts on record and submissions of all the parties, it appears that during the relevant period, the brand ALASKA was owned by the entity namely M/s. Vinko Auto Industries Ltd., Jalandhar, who is a different entity than the assessee-appellant, namely ALASKA Tyres Pvt. Ltd. When it is so, the appellants are not entitled to SSI benefit for the relevant period. 6. The appellants have taken the plea that under the provisions of Trademark Act, 1999, such registration is to be treated as their brand retrospectively and therefore, they should be given the benefit of SSI exemption during the relevant period. In this regard, we refer to Hon ble Supreme Court decision in the case of Meghraj Biscuits Industries Ltd. vs. CCE, UP [2007 (210) ELT 161 (SC)] wherein the Apex Court has observed as under : 12. Applying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that mark. [emphasis supplied] 19. On reading the above quoted paragraphs from the above judgment, with which we agree, it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. This deeming fiction cannot be extended to the Excise Law. It is confined to the provisions of the Trade Marks Act. In a given case like the present case where there is evidence with the Department of the trade mark being owned by M/s. Kay Aar Biscuits (P) Ltd. and where there is evidence of the appellants trading on the reputation of M/s. Kay Aar Biscuits (P) Ltd. which is not rebutted by the appellants (assessee), issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. In the present case, issuance of registration certificate with retrospective effect from 30-9-91 will not tantamount to conferment of exemption benefit under the Excise Law once it is found that the appellants had wrongly used the trade mark of M/s. Kay Aar Biscuits (P) Ltd. [Emphasis supplied] 6.1 Further, in the light of above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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