TMI Blog2000 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... The order excludes the period already covered by Order-in-Original dated 17-10-91 passed by the Assistant Commissioner from 12-8-89 to 25-8-91. He confirmed the demand of duty at Rs. 12,75,877.05. The impugned order imposes a penalty of Rs. 12.5 lakhs as well as imposition of fine etc. 2.A show cause notice dated 28-10-93 was issued by the Commissioner of Central Excise Mumbai-II, inter alia denying the exemption claim by the assessee under Notification No. 140/83-CE. In paragraph 19 of the said show cause notice the authority admits the existence of deed of assignment but deny the exemption on the ground that clause (6) of the Notification No. 140/83 does not make any distinction between brand name or trade name owned by a person in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se see the intimation from the Trade Marks Registry vide its communication dated 8-3-90 informing that Registered Trade Mark No. 381047 in class 3 in the appellant name. 4.In the said communication the trade mark registry states that in view of the assignment dated 21-9-88, the Japanese firm ceased to be Proprietor of the registered trade mark and the appellant Mrs. A.J. Merchant trading as Bigen Industries are the sole proprietor of the said registered trade mark. The contention was raised by the assessee before the Commissioner that assessee being the sole proprietor, the benefit of the notification cannot be denied. 5.It may be relevant to mention that for the period from 12-8-89 to 25-8-91 and Order-In-Original dated 14-10-91 was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has denied the exemption claim under the Notification which has been reflected in the show cause notice. He states that this has been specifically referred to in the Tribunal's order referred to above, he therefore states the department's case should be accepted. 7.We have considered the rival submissions, it is the fact that the Japanese Proprietor have assigned the trade mark in favour of the assessees. On 8-3-90 trade mark registry sent a communication to the assessee in the following manner : - "With reference to your letter dated 2-3-1990 in respect of the above subject, I would inform you that in view of the assignment dated 21-9-1988 Hoyu Kabushiki Kaisha, Japan ceases to be the Proprietor of the aforesaid Regd. Trade mark. I wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remains with M/s. Hoyu Co. Ltd.". The grounds of appeal as reproduced in pages 108 and 109 reads as under : "Further, on basis of intelligence received, search was carried out in Office/Residential premises on 22.6.93 and recovered a box file containing document and correspondence between M/s. Bigen Industries M/s. Hoyu Co. Ltd., which revealed new evidence for the issue of a fresh show cause notice and this evidence had not been disclosed with department by M/s. Bigen Industries resulting suppression of facts. On perusal of the correspondence between M/s. Hoyu Co. Ltd., Japan and M/s. Bigen Industries, it is observed that M/s. Hoyu Co., associated themselves with M/s. Bigen Industries at all stages right from the stage of acquiring o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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