TaxTMI 
TaxTMI 
2008 (1) TMI 359
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....f the clause 4 of the notification No.1/93-C.E., dated 28.2.1993 exemption to a manufacturer for the first clearances of the duty and concessional duty on subsequent clearances as provided in the notification can be disallowed if the specified goods bear a brand name or trade name of another person although the proprietor of the brand name or trade name has assigned the same to the manufacturer ?" (ii) "Whether it was permissible for the C.E.S.T.A.T. to consider a new ground raised by the revenue which was neither taken in the show cause notice nor in the adjudication order and before the Commissioner (Appeals)?" iii) "Whether the impugned order of the Tribunal is vitiated on account of the fact that despite there being execution of....
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....Notification whereof the relevant provision reads as under:- 4. The exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person: Provided that nothing contained in this paragraph shall be applicable to the specified goods which are component parts of any machinery or equipment or appliances and cleared from a factory for use as original equipment in the manufacture of the said machinery or equipment or appliances, and - (i) in a case where the clearances of such 4 specified goods are with the first clearances upto an aggregate value not exceeding rupees thirty lakhs in a financial year, the manufacturer of the specified goods gives a declaration ....
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....ty for consideration of the period commencing from 19.4.1996 for decision afresh. The question of imposing penalty was also left open to be decided by the Adjudicating Authority. 7. It is in view of the above order of the Tribunal that the present appeal has been filed against refusal of the Tribunal to accept the case for exemption of the appellants for the period 19.4.1995 to 19.4.1996. 8. Learned Counsel for the appellants has submitted that although assignments under the erstwhile Trade and Merchandise Marks Act, 1958 require registration, the Supreme Court in Collector of Central Excise Ahmedabad v. Vikshara Trading & Invest. P. Ltd.- 2003 (157) E.L.T.4 (S.C.) has observed that when as a matter of fact it is held that there was an as....
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....olman of India Ltd. v. Collector of Central Excise-1996 (88) E.L.T. 641 (S.C.) in support of his contention that without there being a case of the Revenue the Tribunal erred in segregating the period from 19.4.1995 to 19.4.1996 in considering the availability of exemption under the Notification. 10. The short question that arises for determination in this case is as to whether in the wake of the decision of the Commissioner of Appeals for the period subsequent to 19.4.1996 on the basis of the claim made by the appellants that they had been duly assigned the trade mark and were, therefore, entitled to its exclusive use insofar as their product was concerned, the exemption could have been declined for the period anterior thereto i.e. 19.4.....
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....ction 44 with regard to necessity of registration of such assignments. Section 44 of the Trade and Merchandise Marks Act, 1958 makes provision as under:- 44. Registration of assignments and transmissions.- (1) where a person becomes entitled by assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the Registrar to register his title, and the Registrar shall on receipt of the application and on proof of title to his satisfaction, register him as the proprietor of the trade mark in respect of the goods in respect of which the assignment or transmission has effect and shall cause particulars of the assignment or transmission to be entered on the register : Provided that where the validity of an as....