Different trade mark class may avoid branded-goods bar, while bona fide filing error can justify condonation.

A bona fide misunderstanding that connected Commissioner's orders required only one appeal was accepted as a sufficient explanation for late filing, so the delay was condoned. On the exemption issue, the branded-goods bar under Notification No. 1/93-C.E. was held not automatically attracted where the trade mark was registered for a different class of goods, here abrasive preparations rather than lapping machines. Relying on Board guidance and Tribunal precedent, the applicants established a prima facie case for interim protection, and waiver of deposit was granted with recovery of duty and penalty stayed.

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Issues: (i) Whether the delay in filing the appeals deserved condonation. (ii) Whether, for purposes of waiver of deposit and stay of recovery, the manufacture of lapping machines bearing a mark registered in another class took the case outside the bar against branded goods under Notification No. 1/93-C.E.

Issue (i): Whether the delay in filing the appeals deserved condonation.

Analysis: The appeals were filed late because the applicant bona fide understood the Commissioner's disposal of the connected matters as a single order requiring only one appeal. The error came to light only when it was pointed out that separate appeals were necessary for the different orders recorded by the Commissioner. In these circumstances, the delay was treated as sufficiently explained.

Conclusion: The delay was condoned in favour of the applicant.

Issue (ii): Whether, for purposes of waiver of deposit and stay of recovery, the manufacture of lapping machines bearing a mark registered in another class took the case outside the bar against branded goods under Notification No. 1/93-C.E.

Analysis: The demand was founded on the view that the machines bore a registered trade mark and therefore attracted the condition excluding branded goods. The applicant relied on the distinction that the mark was registered for abrasive preparations, while the goods in question were lapping machines, i.e. goods falling in a different class under the trade marks law, and on Board circular guidance and Tribunal decisions recognising that use of a mark belonging to a different class did not necessarily attract the branded-goods restriction. The Department's relied-upon decision was found to turn on a different issue and not to govern the present controversy. On that basis, the applicants showed a sufficient case for interim protection.

Conclusion: Waiver of deposit was granted and recovery of duty and penalty was stayed in favour of the applicant.

Final Conclusion: The procedural delay was excused and interim relief was granted against enforcement of the duty and penalty demand.

Ratio Decidendi: Where the disputed mark is registered in respect of a different class of goods, the branded-goods exclusion in the exemption notification is not automatically attracted, and a bona fide explanation for delayed filing may justify condonation and interim relief.

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