TMI Blog2017 (10) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... gs Priya Polymers are part of the brand name/inscription - Considering the Hon’ble Delhi High Court's decision in the case of CCE vs. Minimax Industries [2011 (1) TMI 782 - DELHI HIGH COURT], it appears that as per the facts on record, the said brand name Priya Polymers-South India cannot be called as an exclusive brand name of other unit viz., M/s. Priya Polymers. The facts indicate that the subject brand name can be said to belong to all the three units, which are owned by one family only - appeal allowed - decided in favor of appellant. - E/442/2008-DB - Final Order No. 21794 / 2017 - Dated:- 28-8-2017 - Shri S. S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member Mr. Radhavendra, Advocate For the Appellant Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a factory located in area other than Rural Area. (v) The Department s stand is that the appellant M/s. Priya Plastic is located in Urban Area and they manufacture and clear plastic mugs under Central Excise Tariff Heading 3924.90 with the emblem of Priya Polymers since March 2003. Therefore, when the appellant is using brand name of another person on the plastic mugs manufactured and cleared by them, they are liable to pay duty for the clearances made during 1st March 2003 to 31st March 2004 amounting to ₹ 1,59,565/- on the aggregate value of clearances of ₹ 9,97,280/-. (vi) The Department therefore issued the show-cause notice (SCN) demanding duty of ₹ 1,59,565/-. (vii) The show-cause notice (SCN) which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er person. In support, they rely on the decision rendered in the case of Eco Products India (P) Ltd. vs. CCE, Meerut: 2000 (120) ELT 357 (Tri.). (iv) The demand for the period prior to August 2003 is barred by limitation. 5. The learned DR for the Revenue vehemently pleads that the duty and the penalty are sustainable against the appellant as they have used the brand name of other person and therefore, they are not eligible for SSI benefit. In support, the learned DR for the Revenue cites following decisions: * CCE vs. Ace Auto Comp. Ltd.: 2011 (263) ELT 3 (SC) * CCE vs. Bhalla Enterprises: 2004 (173) ELT 225 (SC) * CCE vs. Rukmani Pakkwell Traders: 2004 (165) ELT 481 * CCE vs. Hira Cement: 2007 (8) STR 96 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers - South India is not registered as brand name by the other unit viz., M/s. Priya Polymers though the wordings Priya Polymers are part of the brand name/inscription. Considering the Hon ble Delhi High Court s decision in the case of CCE vs. Minimax Industries: 2011 (269) ELT 166 (Del.), it appears that as per the facts on record, the said brand name Priya Polymers - South India cannot be called as an exclusive brand name of other unit viz., M/s. Priya Polymers. The facts indicate that the subject brand name can be said to belong to all the three units, which are owned by one family only. The Hon ble Delhi High Court in the case of CCE vs. Minimax Industries (supra) has held asunder: 14. As noted above, this partnership firm and MEI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 4. It is clear from the above that the trade name Kalimark Aerated Water Works and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. The discussion in the order of the Commissioner, on this aspect, reads as under : 23. During the personal hearing Shri Rathina Asohan drew my attention to the certificates issued by the Trade Mark Registry from the year 1948 to 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant and the male descendants are alone are entitled to succeed over the ownership of the brand name within their marketing area. It is not the case of the Revenue that the appellant is marketing his products outside his marketing area. 24. I find that the appellant is the legal owner of the trade Marks used in his product in his own marketing area, the Trade Mark certificates produced before me clearly establish that the appellant had been having the right of ownership over the Brand names in the year 1962 itself when he became the coparcener in the HUF firm. The appellant has had his exclusive ownership rights even prior to the said impugned notification. Hence the subsequent notification cannot take away the ownership right of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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