TMI Blog2000 (6) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed with brand name "Aquarious-II"; that under the distributorship agreement the entire products manufactured by them was sold exclusively to M/s. Singer India Ltd.; that the Asst. Commissioner under adjudication order No. 108/97 dated 27-11-1997 confirmed the demand of Rs. 1,05,456/- holding that the brand name Aquarious-II was owned by M/s. Singer India Ltd. which was evident from the terms and conditions set out in the distributorship agreement, according to which the appellants were barred from using the words "Manufactured by Eco Products India P. Ltd." and trade mark 'Aquarious-II' or any series of Aquarious while marketing the domestic water purifier in domestic and or overseas market and that they would not use Aquarious trade mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd.; that it has been held by the Tribunal in the case of Kolsit Engineering Corporation v. CCE, Surat, 2000 (90) ECR 457, that the burden of proving that the brand name in question is of another person who is not entitled to exemption benefit fell upon the department. 3. Countering the arguments Shri Ashok Kumar, learned D.R. submitted that it is apparent from clause 6 of the distributorship agreement entered by the appellants with M/s. Singer India Ltd. that the brand name ' Aquarious-II' belongs to Singer India Ltd. and not to them. He referred to the various conditions imposed upon the brand name Aquarious-II' by the appellants under the agreement and referred specifically clause 6.6 which provided that the appellants shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndise Act for water filter and purifier, water treatment apparatus and instrument in their own name in 1996. We find no rebuttal of this fact by the department either in the adjudication order passed by the Asst. Commissioner or in the impugned order passed by the Commissioner (Appeals). As held by the Tribunal in many cases and also in the case of Kolsite Enginering Corporation (supra), the burden is cast upon the department to prove that the brand name which is affixed on the excisable goods manufactured by SSI unit belongs to someone else. We find that this burden has not been discharged by the department in the present matter. The department is heavily relying upon clause 6 of the distributorship agreement and drawing an inference from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts (India) Pvt. Ltd." and Trademark "Aquarious", "Aquarious-II" or any series of "AQUARIUS" while marketing any Domestic Water Purifier in Domestic and/or Overseas market. 6.5 Any new or modified Domestic Water Purifier manufactured/developed by the Manufacturer shall be offered by the Manufacturer first to SINGER and only on refusal by SINGER, the Manufacturer shall be free to market those product, subject to Clause 6.4. 6.6 Manufacturer shall not use Trade mark "AQUARIUS" or any series of "AQUARIUS" for market and/or sale of product at any point of time whether during the currency of this Agreement or after termination of this Agreement. Upon termination of this agreement, however caused, the Manufacturer shall assign, transfer and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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