Trade mark ownership for different goods supported waiver of pre-deposit in an exemption dispute.

Prima facie entitlement to exemption was found where the applicant showed sale of the business, goodwill and trade mark rights in hydraulic machinery. The Tribunal held that the record did not support the Department's claim that the mark was retained by the vendor for other activities, and noted that use of a trade mark for one category of goods does not automatically bar another user for a different category. As the retained business related to air conditioners, not hydraulic machinery, a prima facie case for waiver of pre-deposit was made out and duty and penalty were waived with stay of recovery.

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Issues: Whether the applicant had made out a prima facie case for waiver of pre-deposit of duty and penalty in a dispute concerning denial of exemption under Notification No. 1/97 on the ground that the mark "AW" belonged to another concern.

Analysis: The applicant relied on the sale of the entire business, including goodwill and trade mark rights, in relation to hydraulic machinery. The Department relied on the view that the mark was retained by the vendor for other activities. The Tribunal found that the record did not show any clause supporting the Department's stand and noted that a trade mark used for one category of goods by one person does not necessarily disentitle another person using the mark for a different category of goods. On the facts, the retained business was in air conditioners and not hydraulic machinery.

Outcome: A prima facie case was made out and the duty and penalty were waived with stay of recovery.

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