TaxTMI 
TaxTMI 
2007 (5) TMI 85
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.... remitted the matter for limited purpose by observing as under :- "The determination of this question is crucial for deciding the eligibility of the assessee-company to get the benefit of the notification in question for the aforesaid three unregistered trade marks. In the absence of such decision on the point agitated by the assessee-company, we deem it appropriate to set aside the impugned order of the Tribunal and remit the case back to the Tribunal in so far as the unregistered products, namely, Amigen, Sorgen and Sigum are concerned, for a fresh decision in accordance with law. Order accordingly. All contentions are left open in respect of the aforesaid three unregistered products." Hence this appeal is before us for deciding the iss....
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....ecords. It is undisputed that the products having trade names "Amigen, Sorgen and Sigum" are manufactured by the appellant and they were filing the classification list and declaration to the authorities It is also on record that M/s. Dai Ichi Karkaria have also filed classification list in respect of the very same products indicating the same trade name. The question here is whether the said names "Amigen, Sorgen and Sigum" are branded products or trade names of the products manufactured by the appellant and M/s. Dai Ichi Karkaria. It would be very relevant to read the affidavit filed by Shri Nemichandra Mudya which is as under: "BEFORE THE CUSTOMS, EXCISE & GOLD (CONTROL) APPELLATE TRIBUNAL Appeal No.  ....
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....ers dated 27-3-2000, 17-12-99 and 17-8-99 written by Shri D.K. Podar, Manager (Stores) to the Central Excise Department stating certain trade names belonging to M/s. Dai Ichi Karkaria Ltd. Hence, I am competent to swear this Affidavit. (b) That M/s. Dai Ichi Karkaria Ltd is engaged in the manufacture of textile chemicals since 1963. (c) That M/s. Dai Ichi Karkaria Ltd. manufacturing, in particular, the textile chemicals in the following brand names/trade names: (i) Amigen, Amigen GP, Amigen R (ii) Daikanol (iii) Daikamine EU, Daikamine FC, Daikamin FC 30 (iv) Sorgen 60 (v) Noigen Defoamer 15A, Noigen DW 3145, Noigen ET 80, Noigen L61, Noigen LA2, Noigen OEC, Noigen PA4O (vi) Sigum F (d) That I say and submit that M/s. Dai Ichi Kark....
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....ai Ichi Karkaria Ltd., having also noted the advertisements in the Newspapers and other journals. It is also noticed from the above Affidavit that M/s. Dai Ichi Karkaria Ltd. had abandoned the said trade names "Amigen, Sorgen and Sigum" and are not using the same and nor they are manufacturing these chemicals as on today. The above reproduced Affidavit clearly brings out the fact that the products haying names "Amigen, Sorgen and Sigum" are trade names and were being advertised in the journals and newspapers by the appellant. We find strong force in the argument of the Advocate of the appellant that the trade names have lost sheen as a trade name of a company, due to non-use by the said company. The Affidavit clearly brings out the fact tha....
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....sion of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded. The notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees' goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connecti....