TMI Blog2001 (10) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... Electrical Sales Corporation; that this is evident from the Registration Certificate of Trade Mark Registry which mentions that the Trade Mark was registered in the names of three partners; that said CESC ceased to exist with effect from 31-8-1984 when the partnership was dissolved under a Dissolution Deed; that the dissolution of CESC is not disputed by the Department at any period of time, that CESC was a L4 license holder which was surrendered after its dissolution. In this regard the learned Advocate referred to the letter dated 22-9-1984 of the Range Superintendent and CESC's reply in which it was mentioned that the dissolution deed had been finalized and would be submitted shortly. The learned Advocate further mentioned that the Sales Tax registration was cancelled and the assets and liability of the firm were divided between the partners; that the SSI registration allotted to CESC was cancelled by the Directorate of Industries under their letter dated 31-12-1985 after an inspection of the premises by the Directorate and finding that no unit by the name CESC was functioning; that once CESC itself ceases to exist, a non-existent partnership firm cannot be said to be owning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation; that the manufacturing units set up by the Chopra brothers were under the jurisdiction of the same Range and Division; that it was the same Range that had granted L-4 license to all units that started functioning in the premises where CESC was initially functioning; that the Range Superintendent under letter dated 1-2-1985 enquired from M/s. National Electronic Industries as to whether the brand name "BENTEX" was a registered trade mark and if so, in whose favour it was registered; that reply was given and if Department's file is not traceable, the benefit should be extended to the Appellants; that this letter indicates that the Department was aware about the use of the brand name and the ownership of the Brand name was very much a question that had engaged the attention of the Department as early as 1985. He also relied upon the Adjudication Order No. 1/86, dated 5-2-1986 passed by the Assistant Collector, MODI, New Delhi to indicate that Department was aware of the Dissolution of M/s. CESC; that further, all the units were filing the classification lists clearly indicating the use of Brand Name BENTEX; that one Neeraj Gulati, Accountant, in his statement dated 7-6-1988 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at at the most this agreement has only a limited scope that the partners amongst themselves have agreed to not to object to the use of trade name by each one of them individually, that such an agreement would not have any effect regarding availability of the exemption under the two Notifications. Reliance was placed on the decision in the case of Kali Aerated Water Works v. Union of India, 1995 (76) E.L.T. 265 (MAD). The learned SDR also mentioned that the Brand Name was registered only in the name of M/s. CESC; that according to Section 14 of the Partnership Act the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm and includes also the goodwill of the business; that goodwill is described as the benefit arising from connection and reputation; that trade name is goodwill of a partnership concern and it does not belong to any individual partner. He relied upon the decision in the case of Bell Products Company v. Union of India, 1995 (78) E.L.T. 404 (MAD). Finally, the learned SDR submitted that extended period of limitation for demanding duty is invokable on account of wilful mis-statement and suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 and its cancellation is effective from 28-8-1995 only and not with retrospective effect. In our view, this contention does not advance the case of the Revenue. Firstly, when the partnership firm itself is not in existence, continuation of the brand name in its name in Trade Marks Registry cannot convert a non-existent firm into an - existent firm so as to attract the mischief of Para 7 of Notification No. 175/86-C.E. (or Para 4 of the Notification No. 1/93-C.E. with effect from 1-4-1993). Secondly, as per Agreement Deed all the partners are eligible to use the Brand Name as it would belong to them. Section 46 of the Partnership Act makes a partner entitled to have the property of the firm applied in payment of the debts and to have the surplus distributed among the partners on the dissolution of a firm. Further Section 55 of the said Act provides that in settling the accounts of a firm after dissolution, the goodwill shall be included in the assets and it may be sold. We also observe that Shri Roshan Lal Chopra, in his statement recorded on the day, 25-9-1993) the Central Excise Officers visited the premises, had mentioned these facts as under : "In the year 1984 Chopra Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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