2018 (11) TMI 1456

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....unction order dated 16.03.2004 whereby the appellant restrained from using the brand name "Manikchand" on their goods with effect from 19.03.2004. Thereafter, the appellant has started manufacturing the goods bearing another brand name "RMD". Before the injunction order was passed, the appellant had a stock of Pan Masala / Gutkha with brand name "Manikchand". Since the said goods could not be sold in the market, the appellant filed an application dated 23.01.2006 for destruction of such stock of Pan Masala/ Gutkha of "Manikchand" brand and for remission of excise duty. Since no action was taken by the department, the appellant filed one more application on 22.05.2015. The Adjudicating Authority i.e. Commissioner of Central Excise & Service ....

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....Adjudicating Authority that the goods could have been re-packed and marketed under the brand name "RMD" is based on his imagination. The Pan Masala/ Gutkha packed by the help of machines in small pouches and it is not possible, feasible and viable to remove the already packed material in small pouches and repacked in the new pouches of "RMD" brand. As regards the contention of the Adjudicating Authority that appellant had malafide intention inasmuch as they have used the brand name of another person and violated the Intellectual Property Rights by using brand name "Manikchand", he submits that the issue of brand name, it is not a jurisdiction of the Commissioner as the case was highly debatable and it had travelled up to the Hon'ble Sup....

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....ade to a case of infringement of Intellectual Property Right, the Commissioner has no jurisdiction at all for drawing inference and holding that the appellant had malafide intention. The ld. Commissioner on his own viewed that the goods packed in "Manikchand" brand should have been repacked in "RMD" brand and sold. This is also beyond the jurisdiction of the ld. Commissioner for the reason that whether the goods can be repacked and sold it is completely on the assessee to decide after analyzing the practicability, feasibility and viability. If the assessee decides that the goods are not marketable and claims for destruction of the same and apply for remission of duty, the department had no option except to allow the remission of duty. It is....