AI Drafter 
TaxTMI 
TaxTMI 
2025 (11) TMI 5
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....hat for the period 2005-06 to 2009-10, the Appellant manufactured and cleared gas lighters without payment of duty on which brand names 'National', 'Ganga" and 'Shinghvi' were affixed. 2.2 A Show Cause Notice dated 13.05.2010 was issued to the Appellant proposing to demand duty of Rs.12,35,906/- under proviso to Section 11A(1) of the CEA, 1944 along with appropriate interest on such goods cleared since SSI Notification No. 8/2003-CE is not eligible to them for having used others' brand name. Penal provisions were proposed under Section 11AC ibid apart from Rule 25 & 26 of the Central Excise Rules, 2002. The notice further proposed confiscation under Rule 25 of CER, 2002 of the Dies seized. 2.3 After due process of Law, the Respondent vide Order-in-Original No. 04/2011 dated 31.01.2011 confirmed the duty demand along with interest and imposed equal penalty under Section 11AC of CEA, 1944. The Dies seized, being capital goods, were held to be not liable for confiscation. 2.4 Aggrieved by the order, the Appellant filed an Appeal before Commissioner (Appeals), Chennai and the Commissioner (Appeals) vide Order-in-Appeal No. 151/2016 (CXA-I) dated 29.07.2....
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....d that: - 8.1 Condition No 4 of Notification No. 8/2003-CE states that the SSI exemption is not applicable to specified goods with another person's brand name or trade name. However, there are exceptions where the exemption applies to branded goods. These include when the goods are components used as original equipment by another manufacturer, or when the goods are manufactured in a rural factory. Other exceptions apply to goods bearing brand names of specific government bodies, certain specific products like account books, and packing materials for the brand owner. When calculating the turnover limit for eligibility (Rs.4 crore), the value of branded goods clearances on which excise duty was paid is excluded. 8.2 We also find that once a brand name is legally assigned or transferred, the SSI unit becomes the "owner" of the brand. Therefore, it is no longer the "brand name of another person," and the restriction in Condition No. 4 of Notification No. 8/2003-CE does not apply. Therefore, an assignment of brand/trademark can be: - * Registered under the Trade Marks Act, 1999; or * Unregistered but valid through a deed of assignment or affidavit. We also no....
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....d does not belong to the Appellant iii. In respect of Shingvi Brand, the Statement of Shri. Ajay Kumar, was relied upon, where he claimed that it is their family name, and this clinches the issue in favour of the department. 8.5.1 We have considered the rival contentions of both the sides. We have perused the deed of settlement dated 18.04.2005 whereby the settlor grants, assigns and transfer to the settlee (Appellant) the trade mark of National absolutely, in respect of assignment on his own free will. The Appellant also placed the deed of settlement before us. The moot point here is all this happened in April 2005 whereas the Investigation was taken up only in 2009. There cannot be any shred of doubt on the Bonafide nature of the deed of settlement by pre-dating it. 8.5.2 We have also perused the statements of Smt. Battula Satyavathi, Shri G. Sampath and Shri. Ajay Kumar of Shingvi Brothers. In respect of Ganga brand, we find that is an unregistered brand and the Respondent has not sought for evidence under TM 23 or TM 24. Smt. Battula Satyavathi in her statement deposed that the brand belongs to one Shri Swatantra Kumar of Delhi and that she has purchased the bran....
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....e exemption notification that such brand name or trade name must indicate a connection in the course of trade between such specified goods and person using such names or marks, does not get satisfied in as much there is no such person using such names so as to indicate a connection in the trade. We, further, note that it is recognized even by the Board that some of the brands floating in the marks did not belong to any particular manufacturer and any unit is free to use any name, specifically in the case of locks. The Board has clarified that such use thereof will not deprive any unit from the benefit of small-scale exemption notification. The above clarification issued by the Board is based upon the opinion of the Law Ministry. In as much as in the present case also, the brand names do not belong to any particular manufacturer and are free for any assessee to use as such, we are of the view that the benefit of notification can not be denied to the appellant on this ground." A reference was also made to the Board's Circular No. 52/52/94-CXr dated 01.09.1994 which states that "some of the brands floating in the market not belong to any particular manufacturer and any unit i....
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....lack of ownership/claim by any third party, the bar of Para 4 is not attracted 8.6.2 We also find that Para 4 of Notification No. 8/2003-CE excludes from exemption goods "bearing a brand name or trade name (whether registered or not) of another person" - unless an exception applies. The core question is whether the brand belongs to another person. The notification (and Explanation) must be read to ascertain whether a mark indicates a connection in the course of trade between the goods and some other person. The burden to establish that the brand actually belongs to "another person" and that the use indicates a connection, rests with the Department. 8.6.3 From the above, we find that the Supreme Court and Tribunals have consistently held: that If the appellant owns the brand (including by assignment) or the alleged owner denies/does not own the brand (i.e., there is no "other person"), the prohibition does not apply and the exemption is available. The ratio of the above decisions is squarely applicable in this case, and following the principle of judicial discipline, we are inclined to follow the same. 8.6.4 The Supreme Court has repeatedly held that the mere use of a word ....