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TMI Blog1992 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... lants are entitled for S.S.I. exemption under Notification No. 175/86 dated 1-3-1986 as amended by Notification No. 223/87 dated 22-9-1987 in respect of goods manufactured by them viz., L.P.G. Gas Stoves under brand name 'Hotline'. 3. Arguing for the appellants Shri V. Lakshmikumaran, learned Advocate, submitted that point at issue is to be decided with reference to the main appellants M/s. Opus India and if the Tribunal comes to the conclusion that they are entitled to claim S.S.I. exemption under Notification No. 175/86 as amended, it would not be any difficulty for the remaining appellants to succeed on this issue as they were licensed to manufacture the gas stove with brand name of 'Hotline'. He said that in the orders relevant to thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of SSI exemption under Notification No. 175/86. 5. Shri Lakshmikumaran submitted that Trade Mark 'Hotline' had already been assigned to M/s. Opus India in July, 1987 much prior to the amendment of Notification No. 17586 by amending Notification No. 223/87 in September. They never anticipated amendment at the time of acquisition of trade mark and had no plan to avoid tax. He contended that the provisions of para 7 of Exemption Notification No. 175/86 are not all applicable in view of the fact that only in cases where the brand name of another person ineligible to exemption Notification No. 175/86 is affixed then only the concessional rate of duty under Notification No. 175/86 is deniable to such branded goods. He also drew our attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erchandise Marks Act, 1958 are not relevant to decide the issue as they are nothing to do with claiming exemption under Notification No. 175/86. He said that assignment itself is not sufficient to entitle the appellants to claim exemption. Irrespective of the fact that Trade Mark of the goods in question has been assigned to, still something more is to be established to prove that these goods are not identifiable with the previous owner who is not eligible for exemption. He stated that trade mark 'HOTLINE' is an established one for Gas Stoves, T.V. Sets etc. and same cannot be assigned and even if it is transferred the previous owner continues to be the owner and Department was justified in denying the benefit of exemption as the owner of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dunlop India v. Union of India, reported in 1990 (45) E.L.T. 197 (S.C.). 8. We have carefully considered the submissions made by both sides with reference to the facts of the case and perused the records. The decision of the Bombay High Court in the case of Sunder Pannanand Lalwani & Others (supra) has not dealt with the present issue with reference to the excise law as it was mainly concerned with modes of acquisition of proprietorship of trade mark and discretionary powers of authorities in registering the trade mark. Similarly determination of ownership of trade mark through assignment was not an issue in the case of Thio Pharma, Falna (supra) cited by the Departmental Representative. There is no dispute about availing benefit of Small ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person." 9. On a perusal of para 7 of the Notification No. 175/86-C.E. it is clear that the exemption contained in this notification will not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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