2012 (10) TMI 694 - AT - Central Excise

SSI exemption - Notification No.1/1993 - Benefit of concessional rate of duty denied - the said brand Que is not assessee s brand and the said brand is of M/s Que Pharma, a partnership firm, which is having its own separate existence - Held that - On perusal of the deed of assignment it can be said that deed of assignment was in respect of approximately 50 items manufactured by M/s Que Pharma, a partnership firm and the brand name as such have been assigned to the current appellant. In the Notification itself, explanation-IX mentions that brand name or trade shall mean a brand name or trade name whether registered or not. Thus, reference to brand name or trade name in Clause-4 of the Notification & the facts of the case of Jepika Paints 2008 (1) TMI 359 - HIGH COURT MADHYA PRADESH is not to the registered trade name or brand name. Under these circumstances, and in view of the specific provisions contained in the exemption notification, the Tribunal erred in holding that the appellants were not entitled to be considered for grant of registration for exemption for period commencing from 19-4-1995 and ending on 18-4-1996 - appellant herein cannot be denied the benefit of SSI notification on the ground that the brand Que is not registered in their name - in favour of assessee only to the extent that the Tribunal shall now consider the case of the appellants with regard to the period commencing from 19-4-1995 to 19-4-1996.

Summary

Issues:
- Whether the appellant is entitled to the benefit of Notification No.1/1993 under Central Excise Rules, 1944.
- Whether the brand name Que used by the appellant is valid for claiming the concessional rate of duty.
- Whether the assignment of the brand name from a partnership firm to the current appellant is legally valid.

Analysis:
1. The appeal challenged the denial of the benefit of concessional rate of duty under Notification No.1/1993 to the appellant, who was engaged in manufacturing excisable goods. The issue arose when the Revenue authorities alleged that the appellant incorrectly availed the benefit by not clubbing the clearances of two units, leading to the demand of differential duties.

2. The main contention revolved around the usage of the brand name Que by both the units and whether it was legally valid for the appellant to claim the concessional rate. The first appellate authority upheld the denial of benefit, citing that both units were using the same brand name for manufacturing and selling the same product.

3. The appellant argued that the brand name Que was assigned to them by a partnership firm through a deed of assignment, thereby making them the rightful owner of the brand. The appellant relied on legal precedents such as the case of Jepika Paints to support their claim regarding the assignment of the trade name not covered under Notification No.1/1993.

4. Upon examining the assignment deed, the Tribunal found that the partnership firm relinquished its rights to the brand name Que in favor of the appellant. The deed clearly stated that the partnership firm had no further claim to the brand name from a specified date, making the appellant the absolute owner of the brand for manufacturing the assigned products.

5. The Tribunal referred to legal provisions regarding the assignment and registration of trade marks to establish the validity of the brand name transfer. Citing precedents like Vikshara Trading & Invest Pvt. Ltd., the Tribunal concluded that the appellant was entitled to the benefit of the Notification No.1/1993 based on the legal transfer of the brand name.

6. In light of the evidence and legal arguments presented, the Tribunal held that the impugned order denying the benefit of the concessional rate of duty to the appellant was unsustainable. The appeal was allowed, setting aside the impugned order and granting consequential relief to the appellant based on the legal ownership of the brand name Que as established through the assignment deed.