TaxTMI 
TaxTMI 
2001 (7) TMI 696
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Central Excise Rules claiming exemption from licensing control in respect of the product on the ground that they were an SSI unit with clearance value of goods below the limits prescribed under Notification No. 1/93-C.E., dated 28-2-1993. On 24-3-1994, they submitted a letter to the Central Excise Range Supdt. intimating that the trade mark 'BONUS' belonged to them and that they had applied for registration of the trade mark. In that letter, they also stated that the total sales value of the goods for the period 1-4-1993 to 28-2-1994 was only Rs. 7,27,428.75. That letter purported to affirm the claim for exemption under Notification No. 1/93-C.E. ibid. Later on, as they found that their clearances were likely to cross the exemption limit under the notification, they applied for, and obtained, registration with the Department under Rule 174 of the Central Excise Rules for manufacture of the aforesaid product. At about that stage, officers of Central Excise visited the appellant's unit and found that the goods were being cleared under the brand name 'BONUS'. The appellants then produced Assignment Deed dated 22-11-1993 executed between them and M/s. Ecograph A.G., Switzerland, in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore, the appellants were affixing only their own brand name on their product. The trade mark 'BONUS' was registered in the name of the appellants w.e.f. 11-3-1994 as per the certificate of registration issued by the Registrar of Trade Marks under the Trade and Merchandise Marks Act, 1958. The appellants were also an SSI unit duly registered with the Dte. of Industries for manufacture of 'Doctors Blades' as per the registration certificate dated 25-3-1994. In the circumstances, the appellants were entitled to the benefit of exemption under Notification No. 1/93-C.E. Ld. Counsel added that their right to such exemption was not affected by para 4 of the Notification inasmuch as the trade mark 'BONUS' did not belong to 'another person' within the meaning of the said para. Ld. Counsel challenged the finding of the adjudicating authority that the trade mark had not been assigned in toto and that the assignment was restrictive. Relying on the decision of the Calcutta High Court (Single Bench) in the case of ESBI Transmission Pvt. Ltd. v. CCE - 1997 (91) E.L.T. 47 (Cal.) which was upheld by a Division Bench of that Court in CCE v. ESBI Transmission Pvt. Ltd. - 1997 (91) E.L.T. 292 (Cal.), ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts' case that they were the owners of the trade mark 'BONUS' in India during the material period appears to be based on the following provision contained in the Assignment Deed dated 22-11-1993 executed between them and the Swiss company M/s. Ecograph A.G. "..... the assignor hereby assigns to the assignee all right, title and interest in and to the trade mark 'BONUS' in India in respect of said goods together with the goodwill of the business in which the trade marks is being used with effect from the 26th day of April, 1993 the date of execution of the joint venture agreement". Under the above provision of the Asssignment Deed, the Swiss company assigned all rights, title and interest in the trade mark 'BONUS' in India, in respect of the product namely 'Doctor Blades', to the appellants w.e.f. the 26th day of April, 1993. On the basis of such assignment, the appellants applied for registration of the trade mark. The trade mark was registered in the name of the appellant-company w.e.f 11-3-94 in respect of the aforesaid goods as per the certificate of registration issued by the Registrar of Trade Marks on 31-7-2000 under Section 23 of the Trade and Merchandise Marks Act, 195....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o use this trade mark as an owner thereof. He has applied and obtained registration of this trade mark in his own name. So far as India is concerned the trade mark belongs to the petitioner. The Central Excise Act is applicable throughout the territory of India only. The petitioner is using its own trade mark in India and not of somebody else. Therefore, the allegation that the petitioner is using somebody else's trade mark militates against the provisions of the Trade & Merchandise Act, 1958 which are applicable throughout the territory of India. 6. Under the Assignment Deed, the foreign company permitted the appellants to use the trade mark practically as owners thereof in India and the latter obtained registration of the trade mark in their own name w.e.f. 11-3-1994. From that date onwards, by virtue of the provisions of Section 28 of the Trade and Merchandise Marks Act, the appellants acquired exclusive right to use the trade mark in India in relation to the aforesaid product, in respect of which the trade mark was registered. The provisions of Trade and Merchandise Marks Act provided safeguards to the appellants even against infringements of the trade mark by the forei....