9911796707
TMI Blog2003 (2) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act and Rule 173Q of the Central Excise Rules denying the exemption under Notification No. 140/83-C.E. since the goods were bearing brand name of another person; that, however, Commissioner (Appeals) under the impugned Order-in-Appeal No. 584/2001, dated 7-11-2001 allowed the benefit of the said Notification on the ground that the brand name has been sold to them by M/s. ANZALP. The learned Senior Departmental Representative submitted that the raw materials for the manufacture was purchased and supplied to C.H. Herbs by M/s. ANZALP; the brand name holder; that the price of various goods manufactured by C.H. Herbs are fixed as per the direction of one Shri Jatkar, Administrative Manager of ANZALP; that Shri Chhaganlal Sharma, Proprietor of C.H. Herbs had mentioned in his statement that ANZALP had sold the Brand name in question to them and he had not allowed anybody else to use the said Brand Name. The learned Senior Departmental Representative then mentioned that even then M/s. ANZALP continued to place orders with other manufacturers for manufacture and supply of goods with Brand Name An-herb ; that M/s. ANZALP had also made payments for booklets and catalogues of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-11-97 to 20-5-2000 and imposed a penalty of equivalent amount under Section 11AC of the Central Excise Act, besides imposing separate penalty under Rule 173Q of the Central Excise Rules, 1944 on C.H. Herbs and on Chhaganlal Sharma and imposed penalty also on M/s. ANZALP and Shri Nikhil Patel; that the Appellate Tribunal, vide Final Order No. A/260-261/2002-NB (DB), dated 19-2-2002 has set aside the penalties imposed on M/s. ANZALP and Shri Nikhil Patel holding that they were not concerned with the brand name and had nothing to do with the goods. 4. The learned Advocate, further, submitted that M/s. C.H. Herbs have the ownership of the brand and all rights related thereto; that the sale agreement was entered into prior to the period of demand confirmed by the Commissioner under the impugned Order dated 12-2-2001; that merely because the agreement was entered into after the search would not affect the legal position; that as regards the use of the brand name An-herb by other manufacturers, they had produced letters of authorization by them; that it was perhaps through oversight that Chhaganlal did not mention the permission given by him to other concerns for use of the brand n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tright assignment of proprietary right on the trade mark, the assignee becomes owner of the trade mark and goods manufactured by them bearing trade mark are eligible to SSI exemption. 5. We have considered the submissions of both the sides. It is not in dispute that the brand name An-herb was owned by M/s. ANZALP Pharmaceuticals Pvt. Ltd. The issue involved in both these Appeals is whether the said brand name was at all assigned to M/s. C.H. Herbs and if the same was assigned from what date. It is the contention of the assessee that the brand name was assigned to them by M/s. ANZALP on 22-8-95 which is evident from the letter dated 1-6-95 addressed by ANZALP to the Controller, Food and Drug Administration, M.P. wherein they have mentioned that they have authorized C.H. Herbs to use their trade name which had been sold to them. On the other hand, the Revenue has claimed that the brand name was never assigned to the assessee as M/s. ANZALP was getting certain products manufactured from other job workers bearing the same brand name An-herb . The perusal of material brought on records reveals that except the said letter dated 6-9-95 by M/s. ANZALP, there is no other material to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. In view of the facts and circumstances of the present case, all these decisions are not applicable to the facts of the present matter. The decision in the case of Zarafshan Chemicals is not applicable as the Revenue has clearly established in the present matter that the brand name was not assigned to M/s. C.H. Herbs in view of the facts noted by us above. We also note that even as per the Memorandum of Appeal, M/s. C.H. Herbs have made payment of Rs. 15000/- only to M/s. ANZALP Pharmaceuticals as the first instalment vide cheque dated 1-7-97. There is no other mention of any other payment whereas in the sale deed it is mentioned that M/s. ANZALP had received the entire money for the sale of the brand name. On a query from the Bench, learned Advocate for M/s. C.H. Herbs did not answer as to whether any other payment has since been made to M/s. ANZALP Pharmaceuticals. The learned Advocate has also relied upon the Tribunal s Final Order No. A/260-261/2002-NB, dated 19-2-2002 by which the penalties imposed on ANZALP Pharmaceuticals Pvt. Ltd. and Shri Nikhil Patel were set aside on the ground that during the material period the brand name was assigned to M/s. C.H. Herbs and ANZALP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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