TMI Blog2002 (11) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... e cocks and valves; that from this date SBM stopped manufacturing non-ISI grade cocks and valves under the brand 'SANT'; that SBM also issued advertisements in the local newspaper; that a dispute was raised by the Department in July, 1992 about their eligibility to Notification No. 175/86-C.E.; that the Assistant Collector, under Order dated 18-9-92, held that they were independently using the brand name 'SANT' in their own right as per the terms of agreement and the Dissolution Deed; that thus it was an admitted position that the brand name 'SANT' belonged to the Appellants; that again the Central Excise Department started disputing their eligibility of exemption under successor Notification No. 1/93-C.E.; that the Assistant Commissioner has confirmed the demand of duty for the period April, 1995 to July, 1995 under Adjudication Order No. 62/96, dated 18-6-96 holding that the agreement was an internal arrangement between two parties so as to avoid internal dispute regarding use of brand name but the fact remained that the Appellants were using registered brand name 'SANT' of another unit, namely SBM; that Commissioner (Appeals) also, under the impugned Order, rejected their appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Advocate also referred to Section 30(1)(b) of the Trade and Merchandise Mark Act, 1958 which provides that the use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of trade mark, will not constitute an infringement of the right to the use of a registered trade mark. The learned Counsel, therefore, contended that the situation is not as if one is using the brand name of another; that the Appellants have the ownership over the brand name, especially when such use is for a longer period with acquiescence; that the Appellants have the proprietary right or ownership over the brand name due to long and uninterrupted use of over 16 years; that accordingly the mischief of Para 4 of the Notification No. 1/93 is not attracted. He also mentioned that under Trade and Merchandise Marks Act there can be more than one proprietor of trade mark and he referred to Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement given by M/s. Sant Valves Pvt. Ltd. does not mean anything as the same simply says that Sant Valves Pvt. Ltd. have stopped manufacturing the particular Valves in 'Sant' brand; it does not mean that they (Sant Valves Pvt. Ltd.) ceased to be the owner of trade mark 'Sant'. The learned D.R. also mentioned that the Single Judge of Madras High Court in Kali Aerated Water Works v. UOI - 1995 (76) E.L.T. 265 (Mad.) had considered the various decisions of the Supreme Court as also of the various High Courts before pronouncing the order; that the Division Bench of the Madras High Court in decision reported in 2001 (132) E.L.T. 544 (Mad.) has only remanded the matter regarding the entitlement of the appellants for the exemption as the said issue had not even been decided by the Department. On the aspect of acquiescence, the learned D.R. relied upon the decision of the Supreme Court in the case of Power Control Appliances v. Sumeet Machines Pvt. Ltd. - 1994 (2) SCC 448 wherein it has been observed that "Acquiescence is one of the defence available under Section 30(1)(b) of the 1985-Act" and that "The acquiescence must be such as to lead to the inference of a licence sufficient to create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Sri Chakra Tyres Ltd. v. CCE [1999 (108) E.L.T. 361 (T- LB) = 1999 (32) RLT 1 (CEGAT -LB)]. 5. We have considered the submissions of both the sides. The exemption from payment of duty of excise under Notification No. 1/93-C.E., dated 28-2-93 is available subject to the condition that the specified goods should not bear "a brand name or trade name (registered or not) of another person." It is not in dispute that the goods manufactured by the Appellants bear brand name "Sant" which is registered brand name of M/s. Sant Brass Metal Works. The Appellants have claimed that by virtue of Dissolution Deed, Shri Ram Prakash Sikka, Managing Partner of the Appellants, because the owner of the brand name "Sant" in respect of non-ISI grade cocks and valves with effect from 31-3-1986. A perusal of the Dissolution Deed reveals that the business with all the assets and liabilities of the said Firm, except the assets given to retiring Partner, Shri Ram Prakash as mentioned in Clause 2, shall be taken over by the continuing partners. The Deed, further, provided that the retiring partner, i.e., Shri Ram Prakash, shall be at liberty to manufacture and sell only non-ISI items ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
