9911796707
TMI Blog2003 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel submits that Board has issued a circular subsequently on 26-6-2002 clarifying that interest under Section 11AB is not chargeable prior to the period 28-9-1996. In view of the Board's Circular, we do not find any merit in the Department's appeal (E/785/02) and we dismiss the same. 2. Now we take up the appeal (No. E/705/02) filed by M/s. General Pharma Ltd. The issue involves interpretation of paragraph 4 of the small-scale exemption Notification No. 1/93, dated 28-2-1993. The said Paragraph 4 reads as under :- "The exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person." The related Explanation IX to the said notification reads as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no longer the owner of the said brand name. Further in view of the honest and continued/concurrent use of the brand name, the appellants become owners of the said brand names under Section 12(3) of the Trade Marks Act. Further, Dai Ichi has indirectly acquiesced the right over these brand names. The learned Counsel also contends that this Tribunal can decide as to who is the owner of the brand name applying the provisions of the Trade Marks Act. (2) The demand is not sustainable on the ground of limitation as the show cause notice dated 30-2-2000 was received by the appellants on 1-4-2000 and covers duty demand for the period from 1995-96 to August 1999. The appellants contend that extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a classification list for the very same products. He further cites paragraph 5 of the Tribunal's decision in the case of Prince Valves Industry v. CCE, Chandigarh-II - 2003 (154) E.L.T. 220 (T) = 2003 (54) RLT 724 (CEGAT - Del.) to support the Department's case that the brand names are owned by the Dai Ichi and that the continued use of the same by the appellants does not entitle them to the benefit of exemption. On the question of limitation, he submits that the appellants never disclosed to the Department that they were using the brand names of Dai Ichi and therefore extended time of limitation is applicable on the ground of suppression. 6. After hearing both sides and perusal of case records and cited case laws, we are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have been using the trade marks of Dai Ichi. We find such arguments to be frivolous and untenable as the materials on record clearly show that the appellants were aware regarding the ownership of the impugned brand names by Dai Ichi. It is also on record that the Managing Director of the appellant-company in his statement admitted that they were using the brand name of M/s. Dai Ichi in which his wife Smt S.P. Vakil is the Managing Director and that they were using these brand names of M/s. Dai Ichi as these were already popular in the market. The appellants have cited the Apex Court decision in the case of P & B Pharmaceuticals (supra) to the effect that there was no obligation on the owner of a brand name to make a roving in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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