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2015 (11) TMI 673
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.... of Vipanchi along with the logo of Veena. Further, the said brand name and logo belong to one M/s. R.K. Fans & Allied Products, Hyderabad. Investigation also revealed that the mixer grinder bearing the said name Vipanchi were being manufactured by the appellant on behalf of the said M/s. R.K. Fans & Allied Products, Hyderabad and after manufacture, these were being sold to the said firm/their marketing arms who, in turn, was marketing the same. Appellants were not permitted to sell the said goods bearing the said brand name to anyone else. 3. A statement of Shri M. Krishna, Director of M/s. R.K. Fans & Allied Products, Hyderabad, was recorded on 27.12.2006, wherein he stated that his company was into the manufacturing of ceiling fans, voltage stabilizers under 'Vipanchi' brand and they were into trading of mixer grinder in the name of 'Vipanchi'. He further stated that the said brand name Vipanchi belongs to M/s. R.K. Fans & Allied Products, Hyderabad. In the statement he submitted that they have placed orders to the appellant for the manufacture of different models of mixer grinder and while placing the order, they have also forwarded a compact disc containing the deta....
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....rs-in-original and the Commissioner (Appeals)s various orders that though in his statement dated 27.12.2006 Shri M. Krishna, Director of M/s. R.K. Fans & Allied Products, Hyderabad, claimed that the said brand name Vipanchi belongs to them and the same was shown to Shri Amritlal Jain during a statement in February 2007 and he did not object to the said statement of Shri A. Ramkishan, however, after more than a year of receiving the first show cause notice at the time of personal hearing, the appellant produced a memorandum of understanding between him and Shri M. Krishna. The said memorandum of understanding is dated 10.6.2004 and on the basis of the said memorandum of understanding, the appellant claimed that the said brand name was assigned to them by Shri M. Krishna, Director of M/s. R.K. Fans and Allied Products, Hyderabad in respect of mixer/grinder. It is also the contention of the appellant that they have applied to the Trade Marks Registry for registration of the said brand name on 1.2.2007 and the Trade Marks Registry granted Certificate of Registration of Trade Mark under Section 23(2), Rule 62(1), on 7th October 2008, in Class 7 for the said brand name Vipanchi. ....
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....Del) wherein it was held that once there was an assignment in favour of another person and that fact was not in serious dispute; the mere fact that the assignment was not registered could not alter the position for the purpose of benefit of SSI exemption. It was also submitted that the brand-name Vipanchi is held by Shri M. Krishna for electrical fans, voltage stabilizer, etc. in Class 9 from May 2003 onwards and he has assigned/sold the brand-name to the appellants in respect of mixer grinders. It was also submitted that there is no objection by the Revenue in the show cause notice or in the impugned order-in-original and order-in-appeal regarding the authenticity of memorandum of understanding and once the assignment of the trademark is not in dispute, the fact that the brand-name Vipanchi actually belonging to the appellant from April, 2004 onwards cannot be disputed. 6.1 The learned counsel submitted that it would be seen that the department had issued number of show cause notices invoking extended period. It is well settled principle that after the first show cause notice, in subsequent show cause notices, extended period cannot be invoked. 7. The learned Additional ....
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....M. Krishna/M/s. R.K. Fans and Allied Products, Hyderabad. Since the said logo has not been registered in the name of the appellant, it cannot be said that after getting the registration, there is no case of Revenue. The brand name registered and that depicted on the goods are not the same. 7.2 The learned AR further submitted that the object of the Notification is to protect the small scale industries who are manufacturing the goods in their own brand name. The purpose of the exemption is not to permit manufacture in the name of others brand name. In the present case, it is undisputed fact that the goods being manufactured in the Vipanchi brand name were required to be compulsorily sold to M/s. R.K. Fans and Allied Products, Hyderabad or their marketing company and thus it is a case of a brand name owner getting the goods manufactured from a small scale unit. The purpose of the prohibition under Notification 8/2003 is to clearly debar such cases. He further submitted that in case of a small scale unit, the returns are required to be filed quarterly and, therefore, the period of limitation has to be counted from such date. In view of this position, the show cause notice dated ....
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....unsel also relied upon the judgment of the Tribunal in the case of Electron Industries Ltd. vs. CCE, Mumbai reported in 2014 (307) ELT 802 (Tri.-Mum.), to support the contention that penalty is not imposable since the issue relates to interpretation of notification. The learned counsel also submitted the following two case laws for advancing the plea that consideration paid for getting the brand name assigned is not relevant for determining exemption National Appliances vs. CCE, Mumbai reported in 2006 (206) ELT 802 (Tri.-Mum.) and CCE, Goa vs. Premella Sanitary Products reported in 2005 (184) ELT 125 (SC). 9. We have considered the submissions made by both the sides. We note that the benefit of small scale exemption is vide Notification 8/2003 dated 01/03/2003. Para 4 of the said Notification, which is relevant present discussion, is as under: "4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases:- (a) ...... (b) ..... The exclusion clauses are not relevant for the present dispute. Further, in ....
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....ar as indication of the brand name and logo on the mixer grinder as also on their carton is concerned. There are two factors that have come in between which are important. The first factor is the appellant after about 13 months of issuance of the show cause notice, during the personal hearing has produced copy of memorandum of understanding between Shri A. Ramkishan and Shri Amritlal Jain. Copy of the said memorandum of understanding is reproduced below for ready reference:- According to the appellant, on 10th June 2014 they have entered into the said memorandum of understanding with Shri A. Ramkishan and as per serial No.3 on page 2 of the said memorandum of understanding, the trade mark Vipanchi (with logo) was assigned to the appellant in class 7 and they were required to complete the procedure and formality for registration of the trade mark. It is to be noted that the statements were recorded much later than 10th June 2004. During both statements neither Shri A. Ramkishan nor the present appellant talked anything about the said memorandum of understanding or the so called as deed of assignment. 10.1 We have gone through the said memorandum of understanding. At th....
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....a brand name of Shri A. Ramkishan, Director of M/s. R.K. Fans and Allied Products, no case whatsoever can be said to have been made that the appellant was not using the brand name of another person which is the primary requirement for availing the benefit of small scale exemption notification. After 7th October 2008 also, we find that the logo of 'Veena' which is exclusively used to denote the products of R.K. Fans and Allied Products continued to be used on the mixer grinder as also on the cartons. In nutshell, all throughout the period, the goods were bearing the brand name 'Vipanchi' as also the logo 'Veena' which are understood by the customers/purchasers as the products of R.K. Fans and Allied Products/Vipanchi Marketing Pvt. Ltd. and the appellant was prohibited from selling the same goods to anyone else other than R.K. Fans and Allied Products or their marketing company. The various issues raised by the appellant have already been decided by the Hon'ble Supreme Court in various judgments and subsequently this Tribunal has also decided certain cases based upon the decision of the Hon'ble Supreme Court. 10.4 First issue is that the appellant is using the brand/trade name fo....
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....ould be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words 'ARR' with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." 11. The learned AR has quoted the judgment of the Honble Supreme Court in the case of Meghraj Biscuits Industries Ltd. (supra) and we note the following paragraphs are relevant for some of the pleas advanced by the appellant:- "11. We do not find any merit in the above arguments. In the case of Pahwa Chemicals Pvt. Ltd. v. Commissioner of Central Excise, Delhi - 2005 (189) E.L.T. 257 (S.C.) this Court has held that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. These are considerations which are relevant in disputes arising out of infringement/passing of actions under the Trade Marks Act. The object of the notification is to grant benefits only to those industries which otherwise do not have the advantage of ....
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....resent case, issuance of registration certificate with retrospective effect from 30-9-91 will not tantamount to conferment of exemption benefit under the Excise Law once it is found that the appellants had wrongly used the trade mark of M/s. Kay Aar Biscuits (P) Ltd." 11.1 We also note that this Tribunal in the case of Swift Finvest Pvt. Ltd. (supra), has discussed about the deed of assignment and para 14 and 15 of the said judgments which are relevant to the present case are reproduced below:- "14. At the outset it is to be noted that in a case where there is no dispute that the name used by the manufacturer for his product is a brand name of another person, taking resort to the explanation clause does not arise at all. Even otherwise, if we peruse the explanation clause, it lends no support to the case pleaded by the appellants. Plain reading of explanation would disclose that the name which is used in relation to a product for indicating some connection of that product in the course of trade with the person using such names then it would be a brand name of that person. It is not in dispute that Kamdhenu Cement is a brand name of Kamdhenu Ispat Ltd. In fact having a....
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....ication No. 1/93-C.E. provides that the exemption contained in the notification would not apply to specified goods bearing a brand name or trade name registered or not of another person. Referring to Explanation IX to the said notification which explained meaning of the brand name or trade name to mean that a brand name or trade name whether registered or not that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person, it was held that the said explanation makes it clear that the brand name or trade name shall mean a brand name or trade name whether registered or not of another person that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented work or writing and same makes it further clear that even a use of part of a brand name or a trade name, so long as it indicates a con....
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....or trade name. The object of the Notification was to help such units and thereby increase industrial production. Therein the Explanation IX to the said Notification defined the word brand name and trade name as under : "Explanation IX - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. Para 7 which was added to the said notification w.e.f. 1-3-94 read thus - "Para 7 - The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person, who is not eligible for the grant of exemption under this notification." Plain reading of the above decision of the Apex Court would reveal that a notification which spec....
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....ere the original owners, use of the brand name GURU by the appellant would continue to be a use of a brand name of another person. Being so that would be hit by the conditions incorporated under the said notification and would disentitle the benefit thereunder . 23. Besides the registration has been effected from 6-4-04. Applying the law laid down by the Apex Court in Meghraj Biscuits case, retrospective grant of registration cannot create any right in revenue matters even assuming that such registration could be said to be exclusive registration of the brand name n favour of the appellants. It is also not clear as to whether registration in the manner and the circumstances it had been granted, has at all resulted in creating the brand name to be the exclusive property of the appellants." 11.3 We find the appellant has quoted catena of judgments. However, we observe that all these judgments are for period prior to the judgments of the Honble Supreme Court mentioned earlier and the Honble Supreme Court has laid down the law and interpreted the intention of the notification and in view of the said position, we do not consider it necessary to discuss the said case laws....