TMI Blog2017 (6) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... e. When an application has not been presented with the requisite fee, in effect, the application has to be considered as not presented at all - the managing partner of FCF has filed an affidavit stating that the alleged trademark does not belong to them and that the appellants are the absolute owners of the said trademark - department has failed to establish that the alleged trademark belongs to FCF. Extended period of limitation - Held that: - the declaration filed by the appellant gives a detail description of their marketing pattern - suppression cannot be alleged against the appellant and the demand raised invoking the extended period is unsustainable. Appeal allowed - decided in favor of appellant. - E/190/2005 - 40928/2017 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belonged to FCF and therefore dropped the proceedings. Department filed appeal before Commissioner (Appeals) and vide order impugned herein, the Commissioner (Appeals) confirmed the duty demand, interest and imposed penalty. Hence this appeal. 3. On behalf of the appellant, Shri N. Viswanathan, learned counsel submitted the following arguments:- (a) The appellant has been manufacturing and clearing the products by seeking approval of Drug Control authorities and the drug license has been granted with the brand names for all the products manufactured by them. The case of the department is built-up on the allegation that FCF had approached the Trademark registry by filing an application to get the trademark registered in their name. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the marketing pattern adopted by them. It was specifically stated in this declaration that the appellant is manufacturing the products under drug license and that the products are marketed by M/s. FCF, Chennai as per the labeling affixed on the products. Since the appellant has disclosed these facts to the department, the show cause notice issued beyond normal period alleging suppression is not sustainable. 4. As against this, the learned AR Shri L. Paneerselvam reiterated the findings in the impugned order. He submitted that the appellant was using the symbol of 3 arrows, which is the logo of FCF for clearing their goods which amounts to goods manufactured / cleared with brand name of another. The trademark belongs to FCF who had app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants are the absolute owners of the said trademark. The drug license issued by the Director of Drugs Control, Chennai shows that the license has been issued for manufacture of the products along with the said trademark. All these facts put together would go to show that department has failed to establish that the alleged trademark belongs to FCF. The discussions made in the following cases are relevant for consideration of the issue. (i) Commissioner of Central Excise Vs. Balaji Electrodes (P) Ltd. - 2005 (191) ELT 204 (Tri. Bang.) 5. We have carefully considered the submissions and have perused the statement of the Managing Director Shri B. Eswara Rao. Nowhere in the statement, has he admitted that the respondent's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion relied by the learned Counsel in the case of CCE v. Fine Industries applies to the facts of this case. In the CCE v. Fine Industries case, the Tribunal took the view that it was for the Revenue to have established that the brand name belonged to another person, to deny the benefit of notification. As the Commissioner has clearly examined the facts and found that the brand name was not of another person but of the respondents themselves, therefore, the order passed by him is correct in law and it requires to be upheld. There is no merit in the appeal and hence, the same is rejected. (ii) Commissioner of Central Excise Vs. Bhalla Enterprises 2004 (173) ELT 225 (SC) 6. The apprehension of the assessees that they may be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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