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2010 (7) TMI 465 - AT - Central ExciseSSI Exemption Brand Name - brand name Advance had been assigned by the Licensor to the User and the latter was free to use it on their product and also get it registered in their own name in India - Held that - In the present case, even the assessee has not claimed that they have obtained an assignment of brand name against payment of any consideration. As a matter of fact, the agreement dated 16-11-1995 did not provide for payment of any consideration by the assessee to the Licensor for the right to use brand name. In the case of Bigen Industries (2006 -TMI - 411 - SUPREME COURT OF INDIA), the Hon ble Supreme Court upheld the Tribunal s decision holding that the assessee was the sole proprietor of the trade mark for theterritoryofIndiaas recognised by the Trade Marks Registry and hence they were not barred from claiming SSI benefit under Notification 140/83-C.E. In the present case, we have already given the benefit of similar registration of brand name Advance to the assessee-respondent. In the case of Damnet Chemicals (2007 - TMI - 1668 - Supreme Court of India), again, the Hon ble Supreme Court was granting the benefit of registration of a trade mark/brand name to the assessee. On the whole, we find that the cases cited by the learned counsel are either distinguishable on facts or inapplicable to the present case by virtue of the apex court s ruling in Prince Valves Industry case (2006 -TMI - 47587 - SUPREME COURT OF INDIA). For the period prior to 18-8-1999, the assessee cannot claim the benefit, having regard to the relevant provisions of the Trade Mark Registered User Agreement dated16-11-1995(as amended by the supplement agreement dated 9-1-1996). These provisions of the agreement, as we have already noted, would go to show that any absolute right over the brand name was not transferred or assigned by the Licensor to the assessee. Therefore, the respondent cannot claim SSI benefit on the strength of the said agreement, though they can claim the benefit on the strength of the certificate of registration. It is ordered accordingly.
Issues Involved:
1. Eligibility for SSI benefit under various notifications. 2. Ownership and use of the brand name 'Advance'. 3. Application of the extended period of limitation under Section 11A of the Central Excise Act. 4. Imposition of penalties under Section 11AC and Rule 209A of the Central Excise Rules, 1944. Issue-wise Detailed Analysis: 1. Eligibility for SSI Benefit: The core issue was whether the goods cleared by the assessee under the brand name 'Advance' from April 1998 to June 2000 were chargeable to duty of excise without the SSI benefit. The assessee claimed the benefit of Notifications 8/98-C.E., 8/99-C.E., and 8/2000-C.E. under the SSI scheme. However, these notifications barred SSI benefit for goods cleared under a brand name owned by another person not eligible for such benefit. The department contended that the brand name 'Advance' was owned by Capital Controls Company Inc., USA, and thus the goods were not eligible for SSI benefit. The Tribunal found that the brand name 'Advance' was registered in the name of the assessee from 18-8-1999, and thus, clearances from that date were not hit by the notifications' bar. However, for the period prior to 18-8-1999, the assessee could not claim the benefit as the brand name was not registered in their name. 2. Ownership and Use of the Brand Name 'Advance': The assessee argued that the brand name 'Advance' had been assigned to them by the US company through an agreement dated 9-1-1996, allowing them to use and register it in India. The Tribunal analyzed the agreement and found that while it allowed the assessee to use and register the brand name, it did not transfer absolute ownership. The Tribunal referred to the Supreme Court's judgment in Prince Valves Industry, which emphasized that ownership of the brand name is decisive for SSI exemption. Thus, the Tribunal concluded that the assessee did not acquire ownership of the brand name 'Advance' prior to 18-8-1999. 3. Application of the Extended Period of Limitation: The assessee contended that the extended period of limitation under Section 11A was not applicable as there was no suppression of facts. They argued that all relevant information was disclosed to the department, including the technical know-how agreement submitted on 1-9-1999. The Tribunal directed the original authority to consider the plea of limitation and determine whether the extended period was justifiable. 4. Imposition of Penalties: The original authority had imposed penalties on the assessee under Section 11AC and on the Managing Director under Rule 209A. The Tribunal directed the original authority to requantify the penalty under Section 11AC if the limitation issue was decided against the assessee. Regarding the penalty on the Managing Director, the Tribunal noted that no goods were held liable to confiscation under Rule 173Q, and thus, Rule 209A was not attracted. Consequently, the appeal against the penalty on the Managing Director was rejected. Conclusion: The Tribunal set aside the impugned order and allowed the Revenue's appeal partly on merits and partly by way of remand to the original authority with specific directions to requantify the demand of duty, consider the plea of limitation, grant MODVAT credit and abatement of duty if applicable, and requantify the penalty under Section 11AC if the limitation issue was held against the assessee. The appeal against the penalty on the Managing Director was rejected.
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