TMI Blog1992 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... in its favour, and sells the same in India. The Petitioner No. 1 uses its own registered trade mark "Vulcan" with or without its own house-mark "ESBI" in respect of the said product of its manufacture. The Petitioner No. 1 is the sole Consultant of M/s. Vulcan Kupplungs-und Getriebebau, Germany, and has Co-operation arrangement for exploring the marketing possibilities in India of the products of the said German Company. 3.The petitioner company is the registered proprietor of the trade-mark "Vulcan" duly registered under the Trade and Merchandise Marks Act, 1958, Registration Certificate being No. 357227, dated 4th January, 1980 issued by the Registrar of Trade Mark. 4.The case of the petitioner is that it has the exclusive right and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.The main charge in the show cause notice is that M/s. ESBI Transmissions Pvt. Ltd., 8, Camac Street, Calcutta-17 have established themselves as designers and manufacturers in India for producing "VULCAN" diaphragm couplings (flexible) with their own designs and rights for supplying the said couplings in this country in the industrial application field. In this context, the said foreign company have not objected against the use of their Trade name mark "VULCAN" on these diaphragm couplings (flexible) manufactured indigenously and cleared by the assessee, so much so that the said company `VULCAN' has been got registered by M/s. ESBI Transmissions Pvt. Ltd., 8, Camac Street, Calcutta-700017, under the Trade Merchandise Marks Act, 1958 (43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... small scale unit. It was allowed the benefit of the exemption given in that notification. The case of the respondents is that the petitioner is not entitled to this exemption, because Clause 7 of the Notification provides :- The exemption contained in this notification shall not apply"7. to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification." 11.It has been contended on behalf of the respondents that the said foreign company has not objected to the use of their Trade name mark `Vulcan' which has been registered by M/s. ESBI Transmissions Pvt. Ltd., 9, Camac Street, Calcutta-17 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rand name or trade name (registered or not) of another person who was not eligible for the grant of exemption under the aforesaid notification. It has been rightly contended on behalf of the petitioner that the petitioner has used a brand name of its own and of which it is the registered owner. In such a situation the provisions of Clause 7 of the aforesaid notification will not apply to the case of the petitioner. 13.In my judgment the contention made on behalf of the petitioner must be upheld. 14.The petitioner is the owner of the registered trade mark "Vulcan". By virtue of the provisions of Section 28 of the Trade Merchandise Act the petitioner has acquired an exclusive right to the use of the trade mark in relation to the goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied and obtained registration of this trade mark in his own name. So far as India is concerned the trade mark belongs to the petitioner. The Central Excise Act is applicable throughout the territory of India only. The petitioner is using its own trade mark in India and not of somebody else. Therefore, the allegation that the petitioner is using somebody else's trade mark militates against the provisions of the Trade Merchandise Act, 1958 which are applicable throughout the territory of India. 15.In that view of the matter this writ petition must succeed. 16.The show cause notices dated 3rd March, 1992 and the letter dated 9th March, 1992, written pursuant to the said show cause notice, are quashed. 17.A prayer has been made on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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