TMI Blog2008 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Agarwal, Member (T) Shri N.A. Sayyed, JDR, for the Appellant. Shri M.H. Patil, Advocate, for the Respondent. [Order per: K.K Agarwal, Member (T)]. - These are two appeals filed by Revenue arising out of same order-in-appeal, they are therefore being disposed of by a common order. 2. Brief facts of the case are that the respondents M/s. Capital Controls (I) P. Ltd. were clearing their products viz. Chlorinators Vacuum Regulators during the year 1998-99 to 2000-01 under the brand name "Advance" claiming small scale excise exemption. This brand name "Advance" according to Revenue belong to Capital Controls Co., USA, and therefore it is Revenue's contention that the exemption was wrongly availed by them as the brand name " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it allows the department to safeguard revenue by issuing protective demands while on the other hand it allows the exemption and therefore order is not proper as order-in-original cannot be set aside on the basis of probable event in future. 4. It was contended that the respondents had entered in a joint venture agreement with their foreign collaborator viz. Capital Controls Co., USA and as per terms laid down in the Trade Mark Registered User Agreement, Capital Controls Co., USA is the sole owner of the trade mark and the user was directed that the trademark shall be used in a way to clearly indicate that the same belong to Capital Controls Co., USA (Clause 9). Further Clause 10 of the said agreement specifies that the assessee shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several conditions imposed on them by the equivalent owner of the brand. It was further submitted that the Larger Bench of the Tribunal has in the case of M/s. Namtech Systems Ltd. 2000 (115) E.L.T. 238 (Tri.-L.B.) held that the benefit of SSI exemption was not available to the specified goods, where the manufacturer affixes the said specified goods with brand name or trade name of a foreign person and of a non-manufacturing trader. Similar view was taken in the case of Wavetronics v. CC, New Delhi as reported in 2000 (121) E.L.T. 553 (Tribunal) = 2001-(XC2)-GJX-0526-CEGAT. 6. As regards limitation it was contended that Commissioner (Appeals) as pending has not given any separate findings except holding that since the respondents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also invited our attention to the decision of Tribunal in the case of CCE, Ahmedabad v. Vikashara Trading Investment Pvt. Ltd. reported in 1996 (87) E.L.T. 499 (Tri.) wherein it was held that brand name duly assigned to and owned by the assessee for their product from another person who is using the same trade name in respect of different product - Bar contained in para 7 of the Notification No. 175/86 will not be applicable and benefit of exemption has been rightly availed. The matter was carried to the Hon'ble Supreme Court as reported in 2003 (157) E.L.T. 4 (S.C.) where Apex Court held that once it is held that there was an assignment of trade mark in favour of the first respondent which fact was not in serious dispute, the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the small scale exemption cannot be denied to them and the exemption will be available from the date of assignment. We, however, feel that there is a difference between assignment and permission to use the trade mark, though sometime the words are used synonymously. The right of use is different from the ownership, as the bar in exemption is on ownership and not mere right to use, as the wordings are carrying the brand name belonging to another person. Mere right to use the brand name without objection from the owner does not confer ownership and accordingly the benefit of exemption under Notification 1/93 and similar Notifications cannot be extended. This view is supported by Hon'ble Supreme Court's decision in the case of Prince Valves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the duration of the agreement as per various clauses of the Trade Mark Registration User Agreement cited by ld. DR. From the agreement it is absolutely clear, that the foreign suppliers remained to be exclusive owner and in fact the respondents were asked to show on products that the foreign suppliers were the real owners of the trade mark. The Clause 19 subsequently added and referred to by ld. Advocate also makes it clear that the foreign supplier still maintained the right to a the use of trade mark to others but only undertook not to assign to anyone-else in India during the pendency of the agreement. He had the right to assign it after termination of agreement. Further they were still at liberty to use it outside India. Notwithstand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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