TMI Blog2017 (10) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, the brand name is being used is PRIMA-RMPL. The allegation of the Revenue is that PRIMA-RMPL is similar to PRIMA and therefore, PRIMA-RMPL is brand name of other person. That allegation is not sustainable as trade mark authorities have recognised PRIMA-RMPL as a different brand name from PRIMA brand name and after recognising, they have registered with the name of the assessee, which is evident from the registration certificate - As the Revenue has not proved that assessees are not owner of brand name PRIMA-RMPL, therefore, it cannot be alleged that appellant is using the brand name of others - demand set aside. With regard to denial of SSI exemption in the case of M/s. Sayal Manufacturing and Trading Corporation, as Shri M.L. Syal is partner of the assessee firm and owner of the said brand name, as is evident from the certificate issued by the Registry of Trade Mark dated 29.11.1985, allegation of the Revenue that assessee is using brand name of another person does not stand proved and the benefit of SSI exemption cannot be denied - benefit remains allowed. Penalty on Shri M.L. Syal - Held that: - Shri M.L. Syal has expired on 26.08.2016 and to that effect, the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal against denial of SSI exemption consequently demanding duty along with interest and imposing penalties and the Revenue is in appeal against dropping of demand against M/s. Rajeev Engineering Works. 2. As all the appeals are arising out of a common order, therefore, all are being disposed of by this common order. 3. Ld. Counsel of the appellants made submissions with respect to each appellant separately, as under:- (i) As regards M/s. Rajeev Metals Pvt. Limited It is his submission that period involved is February 2001 to September 2001 and show cause notice has been issued on 01.03.2006, whereas the goods manufactured by them are Grease Guns and parts thereof and Hand Pump Oilers and Oil Cans etc. It is his submission that the appellant is manufacturing their goods under the brand name PRIMA-RMPL . The said brand name has not been registered in the name any other person and the same is owned by them, which has been registered brand name vide registration certificate dated 26.09.2005. It is his submission that initially they applied for registration on 30.12.1993 but due to some inadvertent discrepancies proceedings against the said application could not be comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on the arguments advance in the case of M/s. Rajeev Metals Pvt. Limited and also submits that brand name PRIMA duly registered in the name of assessee for manufacturing Kerosene Barrel Oil Pumps, Rotary Oil Pumps and semi-Rotary Oil Pumps and parts of grease guns. The trade mark authorities have recognised the assessee and granted to certificate of registration with effect from 26.08.1998, therefore, it cannot be held that the assessee is using the brand name of another person. In that circumstance, he submits that as the assessee is having trademark registration since 1998, the benefit of exemption cannot be denied. (iii) As regards Shri Mohinder Lal Syal : Ld. Counsel submits that as the appellant Shri Mohinder Lal Syal has been expired on 14.08.2016, therefore the penalty imposed on Shri Mohinder Lal Syal is to be quashed. (iv) With respect to the appeal filed by the Revenue in the case of Rajeev Metals Pvt. Limited against dropping of duty demand, It has been alleged in the appeal filed by the Revenue that in respect of Financial Year 2003-2004, only the value for the clearances during the period 01.04.2003 to 09.05.2003 has been taken into account for calculati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, Revenue s appeal has no merit and is required to be dismissed. 4. On the other hand, ld. AR strongly opposed the contention of the ld. Counsel and submitted that it is fact on record that brand name PRIMA is owned by M/s. Rajeev Metal Industries and is registered in their name since 1975. That fact has not been denied by the assessee, therefore, the assessees are using the brand name of other party. In that circumstance, they are not entitled to avail the benefit of SSI exemption. To support his contention, he relied upon the decision of Hon ble Apex Court in the following cases:- (a) CCE, Chandigarh vs. Bhalla Enterprises 2004 (173) ELT 225 (SC) (b) CCE Trichy vs. Rukmani Packwell Traders 2004 (165) ELT 481 (SC) (c) CCE, Chandigarh vs. Mahaan Diaries 2004 (166) ELT 23 (SC) (d) Meghraj Biscuit Inds. Ltd vs. CCE UP 2007 (210) ELT 161 (SC) (e) Vee Gee Faucets P. Limited vs. CCE Gurgaon 2010 (259) ELT 273 (Tri. Del.) (f) Vee Gee Faucets P. Limited vs. CCE Gurgaon - 2015 (316) ELT A72 (SC) 5. Heard both sides and considered the submissions. On careful consideration of the submissions made by both sides, we find that the short issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 which were filed before the lower authority. I find the appellant s name also figures in the certificates issued in the year 1962 and 1970 when he became one of the partner of the erstwhile HUF Firm. The appellant have been marketing his products only within his own marketing area. It is not the case of the Revenue that any other person is using the same Brand names in the same area. Similarly the appellant is not selling his goods outside his marketing area. So far his business is concerned the appellant appears to be the only legal owner of the Trade Mark within his marketing area. This has been clearly brought out in the Mutual Agreement dated 12-3-1993 which has been duly presented on 12-3-1993 itself for registration whereas the impugned Notification No. 59/94 came into effect only from 1-4-1994 and hence no motive can be attributed against the appellant in respect of the Mutual Agreement. I have read the entire contents of Mutual Agreement. I find that Mr. K.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being used is PRIMA-RMPL. The allegation of the Revenue is that PRIMA-RMPL is similar to PRIMA and therefore, PRIMA-RMPL is brand name of other person. That allegation is not sustainable as trade mark authorities have recognised PRIMA-RMPL as a different brand name from PRIMA brand name and after recognising, they have registered with the name of the assessee, which is evident from the registration certificate placed on record and extracted hereunder:- On examining the brand names PRIME and PRIMA-RMPL from the registration certificates issued by the Trade Mark authorities, we find that both are altogether different, therefore the assessee was not using the brand name of M/s. Rajeev Metal Industry. As the Revenue has not proved that assessees are not owner of brand name PRIMA-RMPL, therefore, it cannot be alleged that appellant is using the brand name of others. Therefore, we hold that the assessees namely, M/s. Rajeev Metals Pvt. Limited, is entitled for exemption under SSI notification, consequently, the impugned order qua demanding duty by denying the exemption to M/s. Rajeev Metals Pvt. Limited is set-aside. In the result, appeal filed by the Revenue is also dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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