9911796707
TMI Blog2002 (1) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time, the jurisdictional Commissioner of Customs, Bombay received a communication from M/s. SONIC Battery Co. Ltd., Hong Kong to the effect that the latter was the owner of the trade mark SONIC in respect of battery for Hong Kong and the whole of Chinese Mainland and further that M/s. PACIFIC were manufacturing and selling SONIC brand battery. Acting upon this communication, the Customs authorities framed a case of falsification of trade mark against M/s. Dipak Enterprises and, by show cause notice, proposed to confiscate the above consignment under Section 111(d) of the Customs Act, 1962 as also to impose penalty on them under Section 112(a) of the Act. The proposal was contested. In adjudication of the dispute, the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name under that Act. He submits that, even otherwise, any action for the offence of falsification of trade mark has to be taken by the competent authority under that Act and not by any authority under the Customs Act. According to ld. Counsel, for initiating and maintaining any action under the Customs Act against an importer for falsification of any foreign trade mark, there has to be a finding by the competent authority under the 1958 Act that the trade mark has been falsified. Counsel argues that a finding of falsification of trade mark belongs to the jurisdiction of the competent authority working under Chapter X of the 1958 Act. Once such a finding is recorded by that authority it would fall to the Customs authorities to initiate thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is there any finding of fact that the trade mark SONIC has been falsified. In the absence of such finding, it was not open to the Customs authorities in India to initiate proceedings of this kind against M/s. Dipak Enterprises who were only bona fide importers of the branded goods. Therefore, Counsel submits, the very show cause notice was issued illegally and without any supporting evidence. Confiscation of the goods and the imposition of penalty have to be set aside. 4. Ld. JDR, Shri V.K. Verma opposes. He has heavily relied on the preamble to the 1958 Act as also on the provisions of Section 118 of the Act. He submits that the Act was enacted not only for the registration and protection of trade marks in India but also for the preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods imported under falsified trade mark was prohibited for import under Notification No. 1/64 and that the effect of release of such goods into India would be to defeat the very purpose of Section 11 of the Customs Act and, therefore, the order of the Commissioner (Appeals) for redemption of the goods on payment of fine has to be set aside. 5.1 I have examined the submissions. The case of the Department as set up in the show cause notice (SCN) against M/s. Dipak Enterprises is based on a letter from M/s. SONIC Battery Co. Ltd., Hong Kong, which stated that they (the SONIC Co.) were the owners of SONIC trade mark and that M/s. PACIFIC (who supplied the goods in question to M/s. Dipak Enterprises) were indulging in the manufacture and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, their case was that the goods did not attract Notification No. 1/64 or Section 11 of the Customs Act and hence could not be confiscated under Section 111(d) of the said Act. The party also raised a jurisdictional objection, without prejudice to the above contention. They referred to Section 105 of the 1958 Act and stated that no officer of Customs had any jurisdiction to adjudicate on a dispute relating to trade mark under the said Act. They further submitted that there could be no proceeding for violation of prohibition [of import of goods mentioned at Serial No. (iii)] under Notification No. 1/64 before a finding was given by competent Court authorised in this behalf by the 1958 Act. These objections raised by the party before the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, without attempting to examine any of the issues involved in the case, I would remand the matter to the Commissioner (Appeals) for de novo disposal of the appeal before him. 6. The impugned order is set aside and both the appeals are allowed by way of remand. The Commissioner (Appeals) shall dispose of the party s appeal afresh by a reasoned order after affording them a reasonable opportunity of being heard and duly considering their pleadings and contentions on the jurisdictional and other issues. 7. In Misc. Application No. 346/2001/NB(S), the party has claimed that other Custom Houses have permitted import of like goods (SONIC-branded). They have also produced copies of Invoice No. GB2K-0725, dated 25-7-2000 issued by a Chines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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