TaxTMI 
TaxTMI 
2022 (4) TMI 1358
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....L); as the said brands were owned by M/s PPPL, the appellants have violated the provisions of Notification no. 8/2003 CE- dated 01.03.2003; statements of partners Dr. Smita Raste, Shri Ravindra Prabhudesai, CEO and MD of M/s Pitambari Products, were recorded. On conclusion of the investigation a show cause notice, dated 02 July 2010 was issued to the appellants inter alia, demanding duty, of Rs. 1,08,93,144/- , covering the period 2005-06 to 2009-10, under proviso to Section 11 (A) of Central Excise Act, 1944 along with interest and penalty under Section 11 A(C); Dr. Smita Raste, Shri Shantanu Raste and M/s Pitambari Products Pvt. Ltd were asked to show cause as to why penalty should not imposed on them under Rule 26 of Central Excise Rules 2002. The show cause notice was confirmed by the impugned order dated 08.12.2010, vide which the commissioner i. Confirmed Duty of Rs. 68,99,938/- on M/s Dr. Smita Herbal Laboratories along with interest under Section 11AB and imposed equal penalty under Section 11C of Central Excise Act, 1944. ii. Imposed Penalties of Rs. 68,99,938/- and Rs. 10,00,000/- respectively on Dr. Smita Raste and Shri Shantanu Sharad Raste, partn....
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....ow that M/s PPPL are engaged in sale of the goods of the brands "Cureon" , "Vasundhara", "Healmate". Learned Advocate further submits that M/s PPPL have assigned all the three brands to the appellant by virtue of 3 separate deeds of assignments dated 14.06.2005 and 28.11.2006; after such assignment M/s Pitambari products have not at all used the brand names in the manufacture of specified goods. 3. Learned Advocate vide his written submission dated 12.10.2021 submits that the bench, during the course of hearing, directed them to submit the proof, if any, that M/s Pitambari did not use the three brand names for manufacturing their goods during the period June 2005 to February 2011; the appellant tried their level best to get the details from Excise and Income Tax authorities but were not successful as the departments expressed their inability to trace the old records. However, he submitted the copies of the following documents which he relied upon during the course of hearing. i) Surrender of license for "Vasundhara" by M/s Pitambri Products on 02.11.2006 ii) ER-1 returns filed by M/s Pitambari for the period April- September 2008 and January 2009 iii) ....
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....ms and conditions of the deeds of assignment, they were limited for three years; assignments were in respect of particular Trade Marks; no use of the said Trade Mark shall be made by the assignees, which in any manner will be prejudicial to the ownership rights of the Assignors in respect of the said trade mark; the assignors were required to pay an amount per annum as consideration for getting the assignment of the Trade Mark; the assignors have right to terminate the agreements by giving one week's notice in advance to the assignees and the decision of the assignors in this respect shall be final; in case of use of the Trade Marks by assignee after termination or expiry of the agreement, they shall be liable to compensate Assignors. Further as per the assignment deeds, the assignee was liable to compensate the assignors till use of the Trade Mark continued, as a percentage of turnover made by using the trade mark; the following specific clause (at no.8 in both the deeds dated 28/11/2006) in the deeds shows that the Trade name was never transferred or passed on to the assignee it says "This Assignment is not intended to convey, transfer or pass on the ownership, title or right....
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....e 8 of Form 3 CD of income tax returns filed by M/s PPPL indicate that they were trading in the goods with above brand names. Learned AR relies on Yash Krishni Food Services Ltd Vs. Commissioner of Central Excise, Mumbai [2015 (318) ELT 144 (Tri.-Mumbai)] submits that even if the brand name owner was not a manufacturer or trader , the same will not have any bearing on the notification . 8. They further submit that there was a dispute between the appellants and M/s Pitambari Products Pvt. Ltd. and civil court order dated 24.10.2007 clearly states that "Suit is disposed as withdrawn"; there is no adjudication; a compromise decree cannot act as res judicata in view of the following case law. i. Municipal Corporation of Delhi Vs Gurunam Kaur [1989 AIR 88] ii. Pulavarthi Venkata Subba Raoand Vs Valluri Jagannadha Rao [1967 AIR 591, 1964 SCR (2) 310) iii. Kumar Ganganand Singh And Ors. Vs Maharaja Sir Rameshwar Singh [102 Ind Cas 449] iv. Baldevdas Shivial Vs Filimistan Distributors (India) P. Ltd [1970 AIR 406, 1970 SCR (1) 435] v. Krishna Processors Versus Union of India [2012 (280) ELT186 (Guj.)] vi. Booz Allen and Hamilton Inc.....
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....exemption contend in notification no.8/2003, as amended from time to time on the products bearing the brand names " Cureon" , "Vasundhara", "Healmate", assign to them by M/s Pitambari Products Pvt. Ltd. as per agreements; whether in the facts and circumstances of the case extended period can be invoked; whether penalties imposed for the appellants are justified and as to whether the appellants are eligible for cum-duty benefit. The appellants rely mainly on the submission that the brands have been assigned to them by M/s Pitabmbari Products Pvt. Ltd. under various written arguments; M/s Pitambari Products Pvt. Ltd. never manufactured the specific products during the impugned period; M/s. Pitambari Products Pvt. Ltd. did not have FDA license to manufacture the specified branded goods and it is evident that M/s. Pitambari Products Pvt. Ltd had never objected to the manufacture of impugned goods by the appellants and therefore the bar contained in the notification is not applicable and therefore the exemption notification is squarely available to them. 13. We find that the learned commissioner, in the impugned order, after extracting the provisions of notification no.8/2003, finds ....
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....rent units including the appellants; three products "Cureon", "Vasundhara", "Healmate" are manufactured by the appellants; the entire production is purchased and marketed by them; they have independently conducted research and develop the products and applied for their registration; registered trade mark are owned and possessed exclusively by them. We find that Shri Ravindra Prabhudesai, CEO of M/s. Pitambari Products Pvt. Ltd. stated that the brands are assigned to DSHL only for compliance of FDA norms. We find that earlier M/s Cordinal Products Pvt. Ltd. had assigned a trade mark of "Cureon Oil" to the appellants for period of 3 years that is up to 30.06.2008; thereafter M/s. Cordinal Products Pvt. Ltd. got amalgamated with M/s. Pitambari Products Pvt. Ltd; the trade marks "Vasundhara baby massage oil' and 'heal mate cream" were assigned DSHL for a period of 3 years up to 27.11.2009. On going through the agreements, we find that the ownership in respect of the trade marks/Brand names were always with M/s. PPPL, even during the currency of assignment; at no point of time the title of the ownership of the brands or trademarks were passed on to the appellants; the agreement wa....
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....etween such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore. what follows from the reading of this Explanation is that if the brand name issued in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, a would fit the description and the matter would be covered by the mischief of Explanation VIII. It is nowhere stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to some goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground. 7....The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Exciso, Chandigarh-I v. Mahaan Dairies- (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as under: "We have today delivered a judgment in CCE v. Rukman....
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....rands were registered the name of the appellants. Therefore, we find that till 2013 that is during the entire impugned period, the brands remained under the title of ownership of M/s PPPL. The appellants were merely manufacturing the goods using the brands belonging to M/s PPPL. The terms of the notification being very clear, there is no need for interpretation and the same need to be strictly construed. In view of the facts and circumstances and the case law discussed as above, we are of the considered opinion that the exemption is not available to the appellants. 19. The appellants have submitted that it was their bona fide belief that they are eligible for the benefit of the notification No. 8/2003 and as such extended period cannot be invoked. On the other hand the learned Authorized Representatives for the Department submit that the appellants were availing SSI benefit and have not been filing monthly or periodic returns. Therefore, the department had no wherewithal to find out the availment of benefit in violation of the conditions of the Notification and consequential evasion of duty by the appellants. Going by the catena of Judgments cited by the Authorized Representativ....