TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 892
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.... Revenue is that, one Shri Pran Nath Khanna was the owner of brand name for the intended goods. As the same was registered in his name with effect from 15.07.2004 vide registration certificated dated 13.02.2006, therefore, it was proposed in the show cause notice that as the brand name Everest is owned by the 3rd party and as per clause (iv) of the Notification No. 08/2003 the benefit of notification is not available in case the goods manufactured by the appellant under the brand name of another person. The matter was adjudicated and benefit of notification is denied to the respondent holding that they are using the brand name of 3rd party i.e. another person and hence they are not entitled to avail the benefit. The said order was challenged before the ld. Commissioner (Appeals) who set-aside the adjudication order and allowed the benefit of exemption notification. Aggrieved from the said order, the Revenue is in appeal before us. 3. Ld. AR submits that as per the statement of Shri Pran Nath Khanna that he is owner of the partnership firm namely, M/s. Everest Engineering Works which is manufacturing various types of pumps i.e. car washers, grease guns, piston pumps, air compressor....
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....d the brand name in the capacity of ownership, as the respondent is partner of EEW which was using the brand name 'Everest'. He further submits that the case of the Revenue is that brand name is registered in the name of Shri Pran Khanna, therefore the respondent are not entitled to used the brand name and are not the owner of the brand name. It is his submission that registration of brand name by some individual at a later date cannot be a ground to deny the benefit of Notification No. 08/2003 in the light of the decision in the case of Meghraj Biscuits Industries Limited vs. CCE 2007 (210) ELT 161 (SC). He also relied on the decision in the case of Kali Aerated Water Works Vs. CCE - 2015 (320) ELT 692 (SC) and CCE Vs. Stangen Immuno Diagnostics 2015 (318) ELT 585 (SC). He also relied upon the decision in the case of Tribunal decision in the case of CCE Vs. Jain Spices - 2011 (273) ELT 135 (Tri.). 5. Heard the parties in detail and considered the submissions. For better appreciation the facts of the case, list of date are incorporated hereunder, which are undisputed:- LIST OF DATES Date Particulars 01.01.1968 M/s Everest Engineering Works (EEW) was formed comprising ....
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....e firm i.e. EEW with effect from16.07.1989. 21.08.2006 Smt. Asha Khanna filed for rectification of the Trade Mark Register by oppong the grant of registration to Shri Pran Khanna. It was filed as soon as the grant came to the knowledge of the Respondent 21.09.2006 Asha Khanna files a suit bearing number 134/2006 against Pran Khanna- EEW-1. 27.09.2006 The Civil Court order status quo in 134/2006. 6. We further take note of the contents of the settlement agreement dated 21.05.1989 and the relevant part of the said agreement is extracted below:- "We have been manufacturing Car washers, Grease guns, Air Compressors, Water piston pumps and accessories under the brand and trade name 'EVEREST'. It is now mutually agreed that all the parties to this writing have Equal right to use the brand 'EVEREST' in future whether we do business together or separately. Each and everyone of the above parties have right to use the Brand 'EVEREST' in future production and trading of the above items in setting up factories individually or in partnership with others. WE ALL HAVE TODAY PUT OUR SIGNATURES AND ON THIS DOCUMENT AND AGREED THAT NO PARTY WILL EVER GET THE REGISTER....
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.... thereafter set up M/s. Prince Valves Industry, the appellant herein, with 11 partners and started producing non-ISI/non-IBR grade valves and cocks in the brand name of 'SANT'. 10. The Tribunal has held that the brand name 'SANT' continues to be registered in the name of M/s. Sant Brass Metal Works and, therefore, the appellant will not be entitled to the exemption under Notification No.1/93-C.E. This is so because the appellant has only the limited right to use the brand name under the registered trade mark. The ownership of the trade mark had not been transferred to the appellant." Para 10 of the said order analyse the facts and it was held that brand name continue to be registered in the name of partnership firm and the ownership of the trademark is not transferred to the appellant. The facts of the case in hand are not such of Prince Valves Industry (supra) as, initially the EEW was using the brand name EVEREST since 1968 and the said trademark was not having registered brand name and as per agreement dated 21.05.1998, the respondent is having right to use the brand name individually or working together. Therefore the facts of the case in Prince Valves Indus....
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.... but it was its own and therefore would not come within the mischief of para 4 of the Notification. 10. We would like to observe that if the aforesaid contention of the respondent is factually correct, viz. The respondent used the brand name as the owner thereof itself, and was not using the brand name as belonging to DRL and authorized by DRL, then the submission of Ms. Tripathi is legally tenable. 11. Condition No. 4, as already noted above, stipulates that the exemption contained in this Notification would not be given to a person in respect of goods where brand name or trade name of another person is used i.e. the goods bearing the brand name or trade name which belongs to some other person. It is immaterial whether such brand name or trade name is registered or not. However, Explanation-IX gives a unique and particular definition to the term brand name or 'trade name'. It is clear from the reading of the said explanation that the definition of brand name or trade name contained therein is concerned with a particular name or mark which is used to indicate, in the course of trade, a connection between such specified goods as satisfying the criterion provided in afore....
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....ties herein have agreed to abide by them and hence this Deed of Mutual Agreement." 4. It is clear from the above that the trade name Kalimark Aerated Water Works and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. 5. It is thus manifest that the appellant has been using its own brand name Kalimark and it belongs to the appellant. In view thereof, the case of the appellant is squarely covered in its favour by the judgment of this Court in Civil Appeal No. 9157 of 2003 titled CCE, Hyderabad-IV v. Stangen Immuno Diagnostics decided on 19-3-2015 [2015 (318) E.L.T. 585 (S.C.)]." We further take note of the fact that this Tribunal had occasion to examine the issue in the case of Jain Spices (supra), where in this Tribunal observed as under:- "5. We have carefully considered the rival submissions. From the Memorandum....