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2023 (1) TMI 343 - AT - Central ExciseSSI Exemption available under Notification No.8/2003-C.E. dated 01.03.2003 - use of brand name of others - case of Revenue is that since the appellant has used brand Bintex belonging to some other person benefit of exemption under the said notification is not available - penalty - HELD THAT - The Bintex brand is registered with Trade Mark Registry wherein the appellant partner Shri Rajesh Kumar Harshdrai Punatar is also one of the owner - From the registration it is clear that the appellant s partner Shri Rajesh Kumar Harshdrai Punatar is one of the owner of the brand name Bintex out of the other family members. It is also submitted by the appellant that Shri. Rajesh Kumar Harshdrai Punatar is a partner in M/s. Abhay Industries from 01.04.2001 onwards. In this fact it is opined that the appellant firm using the brand name of Bintex for which the appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of the brand name Bintex the appellant firm is eligible for exemption under Notification No. 8/2003-CE dated 01.03.2003. This Tribunal in various judgments cited by the appellant held that if brand is owned by any of the member or jointly by the family any member of the family if use the said brand it cannot be said that assessee is using the brand name of other person. The present case is on much better footing for the reason that the appellant s partner Shri Rajesh Harshdrai Punatar himself is one of the owner of the brand Bintex as per the Trade Mark Registration therefore there is no doubt that the brand name cannot be said to be belonging to any other person. Consequently the appellant is eligible for exemption notification. Penalty - HELD THAT - Since the demand against the main appellant is not sustainable in view of the above discussion and finding the penalty on the partner also will not sustain. Moreover since the penalty on partnership firm was imposed a separate penalty on the partner cannot be imposed as held by the Hon ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS JAI PRAKASH MOTWANI 2009 (1) TMI 501 - GUJARAT HIGH COURT . Appeal allowed.
Issues involved: Eligibility for SSI Exemption under Notification No.8/2003-C.E. dated 01.03.2003, ownership of the brand "Bintex," penalty imposition on a partner of the firm.
Analysis: 1. Eligibility for SSI Exemption: The main issue in this case was whether the appellant was entitled to the Small Scale Industry (SSI) exemption under Notification No.8/2003-C.E. dated 01.03.2003. The department argued that since the appellant used the brand "Bintex" belonging to another person, the exemption was not applicable. However, the appellant contended that the "Bintex" brand was registered in the name of family members, including the appellant, and therefore, they were eligible for the exemption. The Tribunal examined the Trade Mark Registration, which showed that the appellant's partner was one of the owners of the brand. Citing previous judgments, the Tribunal concluded that if a brand is owned by any family member, its use by any member does not constitute the use of another person's brand. As the appellant's partner was an owner of the "Bintex" brand, the appellant was deemed eligible for the exemption under the notification. 2. Ownership of the Brand "Bintex": The Tribunal found that the Trade Mark Registration confirmed the appellant's partner's ownership of the "Bintex" brand, making the appellant eligible for the exemption. The Tribunal emphasized that since the partner was one of the brand owners, it was clear that the brand did not belong to any other person, thereby justifying the appellant's eligibility for the exemption. 3. Penalty Imposition on the Partner: Regarding the penalty imposed on the partner of the firm, the appellant argued that as a partner of the firm, he could not be penalized separately under Rule 26. Relying on precedents, the Tribunal agreed that since the penalty on the main appellant was not sustainable due to eligibility for exemption, the penalty on the partner could not be upheld. Citing judgments from the Honorable Gujarat High Court, the Tribunal concluded that a separate penalty on the partner could not be imposed when a penalty on the partnership firm was already in place. In conclusion, the Tribunal set aside the impugned order, allowing the appeals with consequential relief, if any, in accordance with the law. The judgment highlighted the importance of ownership of the brand in determining eligibility for exemptions and penalties in such cases.
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