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TMI Blog2001 (3) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ands, entered into an agreement on 8-3-1989 with Eureka Investment Pvt. Ltd. The agreement was to permit Eureka Investment Pvt. Ltd. to manufacture and sell Butterfly/Check valves using the know-how given by Intervalve. The agreement in paragraph 9 provided as under : TRADE MARK It is expressly declared by Intervalve that to its best knowledge and belief the use by the Licensee of the Trade Mark will not encroach on the rights of third parties. Mr. Parekh submits that at a later date the name of the Indian company was changed to Intervalve (India) Pvt. Ltd. but he has not placed on record relevant documents. The Indian company filed classification list claiming benefit of Notification 175/86 from September, 1990 to July, 1990. Four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued demanding duty of 3,53,577.61 for the period 1-10-1989 to 31-3-1990. It was alleged that the assessees had suppressed the fact that the brand name used by them was owned by a foreign manufacturer. The extended period under Section 11A was invoked. The jurisdictional Commissioner upheld the charge and confirmed the duty as above and also imposed penalty of Rs. 35,000/-. The assessees have filed these two appeals against these two orders. 5. We have carefully perused the application made by the Assistant Collector before the Collector (Appeals) and also the show cause notice demanding differential duty. Both these documents presume and allege that the mark iv on the goods was the brand name of the foreign manufacturer. This assertion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Namtech Systems Ors. v. CCE, Bangalore Ors. [2000 (115) E.L.T. 238 (T) = 2000 (36) RLT 35 (CEGAT)]. 8. Even then the earlier claim made by the assessees would survive and that is there was no question of any permission given to them to use the brand name of the collaborators and that the collaborators did not have any brand name of their own. The learned counsel told us during the hearing that iv was merely abbreviation of the manufacturer s name and that it did not in any way amount to becoming a brand name registered or otherwise. Smt. Arya contested this and dwelt on the interpretation of the term brand name made in the same notification. It was her claim that this symbol did create a connection in the mind of the buyer between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessees belonged to their collaborators or not. 11. We also observe that for some time as shown by the interim orders (of South Regional Bench) of the Tribunal [1993 (65) E.L.T. 119 and 1995 (80) E.L.T. 735] there existed an impression or opinion that the benefit of notification 175/86 was available where a manufacturer was using a trade mark of a foreign manufacturer. On this ground also it cannot be held that in putting the brand name at the material time the assessees had contravened the provisions of that notification. 12. Thus, on the twin grounds of limitation and also lack of substantiation of the allegations made in the show cause notice, the two appeals succeed and are allowed. Consequential relief, if any, is ordered. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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