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TMI Blog2001 (8) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. L.M.S. Marketing Pvt. Ltd. 2. Shri Kamal Trivedi, learned Advocate, along with S/Sh. Uday Joshi and Jitendra Singh, learned Advocates submitted that the Appellant, a partnership firm, duly registered under the Partnership Act from 4-10-1978, manufacture Dobby Heads and Name Writer Machine ; that they affixed Dobby Heads with the Brand Name called SHAH TRUMPELT as a sub-assignee; that the said brand name was earlier owned by M/s. Shah Engineering Works (SEW); that SEW assigned the said trade mark to M/s. Narendra Machine Works Pvt. Ltd. (NMW) under an Agreement dated 20-12-1976 on a payment of Rs. 400/- as royalty on the sale of each machine manufactured by NMW; that as a result of some deliberation further Indent of Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 24,672/- has been confirmed in respect of Dyes; that the Dyes were not manufactured by them but were sent by the customers for the purpose of carrying on some minor repair like grinding, laping, etc., and were sent back to the customers; that no duty would be chargeable as there was no change in the name, use, and character of the Dyes after the operation carried by them. 4. Finally, he submitted that the Appellants were selling their goods on principal to principal basis to LMS Marketing Pvt. Ltd. which was incorporated on 30-1-1979; that marketing company cannot be treated as related person merely on the basis of common Directors, sale of 100% production, marketing company having paid interest free advance to the Appellants again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the Collector in para 6.2 of the impugned Order the marketing company is the related person as the expenses towards all sales promotion activities and after sale services had been borne by the marketing company; that the office expenses are borne by the marketing company and the Chief Executive is being paid salary by the marketing company. Finally the learned D.R. submitted that as the vital facts were not disclosed to the Department regarding use of Brand name and their relationship with M/s. LMS Marketing Pvt. Ltd., the extended period of limitation is invokable for demanding the duty. 6. We have considered the submissions of both the sides. As far as affixing of Brand name SHAH TRUMPELT is concerned the learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is used an abbreviated form of father s name can be a brand name as it would indicate in the course of trade connection between goods and the person using such brand name. This aspect was also considered by the Tribunal in Narendra Machine Works case and it was held that it is a brand name. The Tribunal further held as under in Narendra Machine Works case :- Mere fact that LMS Marketing Pvt. Ltd. was incorporated in 1979 i.e. after incorporation of LMS Foundry Pvt. Ltd. cannot be an evidence that LMS brand name could not have been owned by LMS Marketing Pvt. Ltd.................We also observe that the Commissioner in the impugned Order has given his finding that Shri Nilesh R. Doshi and Shri Surendra L. Shah had never retracted their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penses towards all sales promotion activities and after sale services are borne by the marketing company and the manufacturing company is under the management of the marketing company; the office expenses of the manufacturing company are borne by the marketing company. All these facts together will lead to only one conclusion that there is mutuality of interest between the two units and as held by the Supreme Court in Calcutta Chromotype Ltd. (supra) the corporate veil can be lifted. The person behind manufacturer and buyer are same and the financial flow back is also there in the form of interest free advances and meeting of all the expenses for sales promotion as well as after sales services. We, therefore, find no reason to interfere wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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