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2017 (6) TMI 322 - CESTAT NEW DELHI

2017 (6) TMI 322 - CESTAT NEW DELHI - TMI - SSI exemption - use of brand name of others - N/N. 1/1993 dated 28.2.2003 - is ‘ALASKA’ brand is owned by entity other than the assessee appellant? - Held 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. .....

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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. - 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 20 .....

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62 & 1721 of 2010 - Final Order No. 53657-53658 /2017 - Dated:- 6-6-2017 - Dr. Satish Chandra, President And Hon ble 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 appeal against order-in- appeal No. 39-40 /2009 dated 9.2.2010 wherein inter alia Central Excise duty of ₹ 16,90, 758/- along with interest and equivalent penalty has been confirmed against the app .....

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ry 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 .....

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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 and inter alia confirmed the demand of duty of ₹ 16,90,758.19 along with interest and imposition of equivalent penalty. (vii) The said second Order-in-Original No. 62/2008 dated 9.1.2009 was appealed before the Commissioner (Appeals) who sustained the Order-in-Original and additionally imposed penalty of Rs. One lakh .....

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nt 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 assig .....

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996. In this regard the impugned order observes as under: 17. In this regard, I observe that leaving aside the fact that the statutory authority in this behalf namely, the Joint Registrar of the Trade Marks, Mumbai has held it as a valid transfer w.e.f. 01/07/96, in the name of the appellant by virtue of assignment deed executed in 1998 and permitted use of brand name retrospectively w.e.f. 1.7.96 but it is a matter of examination whether in such a circumstances they could be considered actual b .....

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98 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 th .....

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ir declarations during respective years the demand is liable to maintained by invoking extended period along with demand of interest and penalty under Section 11AC of the Act ibid, and therefore, the findings of the adjudicating 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 o .....

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nd 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 particularly the statements of Shri Ravi Gupta, Director of the Company and Shri Madhu Sudan, authori .....

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ing the same brand name. 19. Shri Madhu Sudan, Authorised Signatory of M/s. Vinko Auto Industries Ltd., vide his statement dated 01.09.98 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 evidenc .....

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em 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. 21. On perusal of the assignment deed carefully, it is evidence that there are no signature of the independent witness which should be the integral part of any deed. While .....

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s 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. .....

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, it is clear that grant of registration certificate under the Trade Marks Act will not automatically provide benefit of exemption to the SSI Unit. 13. …….. 14 …….. 15. …….. 16. …….. 17. …….. 18. Law in India under our present Act is similar. 38. A person may become a proprietor of a trade mark in diverse ways. The particular mode of acquisition of proprietorship relied upon by the applicant in this case is of his user for the .....

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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 th .....

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anyone else in this country before the applicant, in connection with that class of goods. Unquestionably, the applicant s user was not large, but that fact makes no difference, because so far as this country is concerned, the mark was a new mark in respect of the class of goods in respect of which the applicant used it. We therefore, hold that the applicant is the proprietor of that mark. [emphasis supplied] 19. On reading the above quoted paragraphs from the above judgment, with which we agree, .....

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