TMI Blog2008 (7) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... .V. Hariharan, JCDR, for the Appellant. Shri P.V. Mohan, Consultant, for the Respondent. [Order per: P.G. Chacko, Member (J)]. - The short question which arises for consideration in this appeal of the Revenue is whether the respondents were entitled to SSI benefit under Notifications No. 9/98-C.E. and No. 9/99-C.E. in respect of their products cleared under the brand name "BOARD WIZARDS" during the period of dispute (1998-99 and 1999-2000). The said brand name belonged to a foreign company, with whom the respondents had entered into "KNOW-HOW AND TECHNICAL ASSISTANCE AGREEMENT" dated 3-9-1996 for the purpose of obtaining intellectual property rights for the manufacture, distribution and sale of certain products in India. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15) E.L.T. 238 (Tribunal)], wherein the benefit of small-scale exemption/concession was held not available to the specified goods where the manufacturer (SSI unit) affixed the goods with the brand name or trade name of a foreigner. It is submitted that the assessee was not the owner of the aforesaid brand name; that the ownership was retained by the foreign company under clause 10.1 of the aforesaid agreement; that the assessee was even prohibited, under the agreement, from applying for registration of the trade mark; that what 'as granted under the agreement to the assessee was only the right to use the trade mark/brand name in India and that such grant could not be termed "assignment" as claimed by the assessee. The learned JCDR has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is patently erroneous. The learned Commissioner (Appeals) observed thus: "As long as the appellant has got an exclusive right to use this brand name and has been authorised to even apply for trade mark registration within India, I do not have any hesitation to come to a conclusion that this brand name becomes the exclusive use of the appellant." After a perusal of the agreement, we note that, under clause 2.1, the foreign company granted to the licensee (respondent herein) the exclusive right to apply the trade marks to the products manufactured in the territory pursuant to the agreement. Obviously, the learned Commissioner (Appeals) misread the provision. He thought that the right given to the licensee was to apply for registration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not registered. The Tribunal held that the non-registration did not alter the assessee's status of assignee of their trade mark, which enabled them to claim SSI benefit. In the instant case, it is not in dispute that the exclusive right to use the brand name in India was granted to the respondents by the brand name-owner under the aforesaid agreement. This grant qualified to be treated as 'assignment" for purposes of SSI notifications. That the ownership of the brand name vested with the foreign company or that the agreement was not registered is immaterial. On these facts, the lower appellate authority was right in granting the benefit of the notifications to the respondents, though, in this process, he happened to record an erroneous find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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