2015 (12) TMI 1153 - AT - Central Excise

SSI exemption - registration of brand name subsequently - assessee was registered with the trade mark Weston on 01.05.1992, but, a demand alongwith interest for the period November 1991 to 31/04/1992 (prior to registration of the trade mark) was upheld - Held that - Tribunal in the earlier order directed the Adjudicating Authority as to whether the brand name Weston was registered under the Trade and Merchandise Marks Act, 1958 in favour of the appellant for telephones w.e.f. 01.05.1992. There is no dispute that the trade mark authority registered the trade mark w.e.f. 01.05.1992. So, the Commissioner (Appeals) rightly set aside the demand for the period from 01.05.1992. - Board clarified that before the denial of benefit of SSI exemption notification regarding ownership of the brand name/trade name, it should be ascertained from each case. In the present case, there is no dispute that the assessee owned the brand name w.e.f. 01.05.1992. We find that the case is covered by the decision of the Tribunal in the appellant s own case. Hence, the appeal filed by the Revenue has no merit. - Matter related to limitation need to decided - Decide against Revenue.

Issues:
1. Confirmation of demand of duty and penalty on two companies
2. Modification of adjudication order by Commissioner (Appeals)
3. Dispute regarding registration of brand name under Trade and Merchandise Marks Act, 1958
4. Interpretation of Section 23(1) of The Trade Marks Act, 1999
5. Application of Hon'ble Supreme Court's decision in CCE Chandigarh-I Vs Mahaan Dairies - 2004 (166) ELT 23 (SC)
6. Examination of suppression of facts and limitation period for demand of duty

Issue 1:
The Adjudicating Authority confirmed the demand of Rs. 11,39,982.00 along with interest and imposed penalties on two companies. The Commissioner (Appeals) modified the adjudication order, setting aside the demand of duty from 01.05.1992 onwards for one company but upholding it for the period prior to registration of the trade mark, reducing the penalty. Both Revenue and the assessee appealed against this decision.

Issue 2:
The Tribunal found that the brand name 'Weston' was registered under the Trade and Merchandise Marks Act, 1958 in favor of the appellant from 01.05.1992. The Commissioner (Appeals) rightly set aside the demand for the period post-registration. The Tribunal referred to a previous case where the benefit under specific notifications was contingent on satisfying registration requirements by a certain date, which the appellant had done.

Issue 3:
The interpretation of Section 23(1) of The Trade Marks Act, 1999 was crucial in determining the effective date of registration of the trade mark. The Tribunal noted that registration takes effect from the date of the application, and in this case, the certificate of registration indicated an application date of 01.05.1992, leading to the conclusion that the authorities erred in denying benefits under specific notifications.

Issue 4:
The Tribunal considered the decision in CCE Chandigarh-I Vs Mahaan Dairies - 2004 (166) ELT 23 (SC), where it was held that registration of a mark entitled the entity to certain benefits. The Board's circular emphasized the importance of ownership of the brand name for exemption notifications, which was established in the present case from 01.05.1992.

Issue 5:
The question of suppression of facts and the limitation period for demanding duty prior to 01.05.1992 was raised by the assessee. Both sides acknowledged that this issue was not addressed by the lower authorities and needed examination by the adjudicating authority to determine if the demand was barred by limitation.

Conclusion:
The appeal filed by the Revenue was rejected, while the appeal by the assessee was rejected on merit. The Adjudicating Authority was directed to examine the limitation issue, ensuring a proper opportunity for hearing before making a decision.

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