TMI Blog2004 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ation a person has to strictly comply with the conditions of that Notification. If on a plain reading of the Notification the benefit is not available then merely on basis of principles applied in infringement cases benefit cannot be claimed. .The Appeals are accordingly allowed as the impugned judgment of the Tribunal is clearly erroneous and unsustainable 10.In our view the impugned judgment of the Tribunal is clearly erroneous and unsustainable. It is accordingly set aside and that of the lower authorities restored. - 3227-3228 of 1998 - - - Dated:- 17-2-2004 - S.N. Variava and H.K. Sema, JJ. [Order]. - These appeals are against the judgment of the Customs, Excise Gold (Control) Appellate Tribunal (CEGAT), dated 26th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that they were not eligible to get exemption under the Notification. The Appeal filed by the Respondents was dismissed by the Commissioner (Appeals). However, the Tribunal has, by the impugned Judgment, allowed the Appeal of the Respondents. 4.The Tribunal has relied upon a Circular issued by the Central Board of Central Excise bearing no. 213/41/88-CX.6, dated 30-12-1988 which, inter alia, purports to clarify as follows : "2. The facts of the case are that a small scale unit "A" are the owners of the trade mark "HOTLINE" with respect to the commodity gas stoves. The same trade mark "HOTLINE" is also owned by another company "B" but for the commodity television. The company "B" was however not eligible for exemption under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r own trade name/brand name "HOTLINE". Therefore before denying a company benefit of SSI exemption by relying on Notification No. 223/87, dated 22-9-1987, full facts regarding the ownership of the brand name/trade name should be first ascertained." 5.In our view this Circular has no application to the facts of the present case. What the Circular clarifies is that if there are more than one registered owners in respect of the same trade mark then merely because the other person has the same registered mark in some other goods would not preclude the owner of the trade mark from getting the benefits of the circular. In this case admittedly the Respondents are not owners of the trade mark "ARR". They do not claim to have any rights in the pho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the exemption would be lost so long as the brand name or trade name is used irrespective of whether the use is on same goods as those for which the mark is registered. 7.The Tribunal had also held that under the Notification the use must be of "such brand name". The Tribunal has held that the words "such brand name" shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not) that is to say a name or a mark, code number, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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