2008 (8) TMI 108 - AT - Central Excise

SSI exemption - appellant has only limited right to use brand name or trade name of foreign person but ownership of trade mark was not transferred to the appellant - Mere right to use the brand name without objection from the owner does not confer ownership and accordingly the benefit of exemption u/not. 1/93 and similar Notifications cannot be extended - in classification declaration, what respondent declared is contrary to the fact therefore, extended period is invokable

Summary

Issues:
1. Small scale excise exemption claimed under the brand name "Advance."
2. Ownership of the brand name "Advance" and its assignment.
3. Contradictory nature of the Commissioner (Appeals) order.
4. Conditions of the Trade Mark Registered User Agreement.
5. Difference between assignment and permission to use a trademark.
6. Applicability of extended period for invoking duty evasion.

Analysis:

1. The case involves the respondents claiming small scale excise exemption for their products under the brand name "Advance." The Revenue contended that the brand name belonged to Capital Controls Co., USA, and thus, the exemption was wrongly availed.

2. The ownership of the brand name "Advance" was a crucial issue. The Commissioner (Appeals) set aside the duty imposition, citing an Assignment Deed from Capital Controls Co., USA to the respondent. However, the Tribunal differentiated between ownership and permission to use a trademark, emphasizing that ownership is a prerequisite for exemption.

3. The Revenue argued that the Commissioner (Appeals) order was contradictory as it allowed both exemption and protective demands, creating uncertainty. The Tribunal held that mere permission to use a brand name does not confer ownership, aligning with previous judgments on similar cases.

4. The conditions of the Trade Mark Registered User Agreement were examined. The agreement specified that the brand name belonged to Capital Controls Co., USA, and the respondent was a conditional user with restrictions on usage, indicating non-ownership.

5. The Tribunal highlighted the difference between assignment and permission to use a trademark. It referenced a Supreme Court case where limited usage rights did not equate to ownership, leading to the denial of exemption benefits.

6. The issue of the extended period for invoking duty evasion was addressed. The Tribunal upheld the invocation of the extended period due to misdeclaration by the respondent regarding ownership of the brand name "Advance," as declared in various classification declarations.

In conclusion, the Tribunal ruled against the respondents, denying them the small scale exemption under relevant Notifications and upholding the extended period for duty evasion due to misdeclaration. The Commissioner (Appeals) order was set aside, and the original duty imposition was restored.