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TMI Blog2012 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of VEE GEE Faucets P. Ltd. v. CC, Gurgaon (2010 (3) TMI 710 - CESTAT, NEW DELHI) cited by the learned DR. The appellant’s plea with regard to limitation had also been considered in the stay order dated 21-4-2011 and had not been found acceptable in the background of the fact that they had not intimated the department that the brand name RIAT being used on their goods does not belong to them and the same is still registered in the name of M/s. Riat Machine Tools. Miscellaneous application dismissed. - E/792-793/2010 - 256/2012-EX(BR)(PB) - Dated:- 16-3-2012 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri K.K. Anand, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The appellant a private limited company with Shri Davinder Singh and Navratan Singh as Directors, are manufacturers of Crank Shaft Grinding Machines and Surface Grinding Machine chargeable to Central Excise duty. They sell their goods under the brand name RIAT . The appellant during the period of dispute were availing of SSI exemption. The department s allegation is that the brand name RIAT does not belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed company and the entire plant and machinery of M/s. Riat Machine Tools was purchased by the appellant company - M/s. Riat Machine Tools Pvt. Ltd. during 2002-2003, that the brand name RIAT belongs to the partnership firm M/s. Riat Machine Tools and was registered in its name, that when M/s. Riat Machine Tools, a partnership firm was dissolved and converted into a private limited company, the brand name RIAT would automatically become the brand name of the appellant company M/s. Riat Machine Tools Pvt. Ltd., that the Tribunal in the case of Arco Whitney Ltd. v. CCE, Pune reported in 2006 (193) E.L.T. 217 (Tri.-Mumbai) has held that when a unit was sold alongwith all its assets and properties including trade marks, designs etc., the buyer company would be entitled to use its brand name and it cannot be said that the buyer company was using somebody else s brand name, that the Tribunal in the cases of Elex Knitting Machinery Co. v. CCE, Chandigarh-I reported in 2003 (158) E.L.T. 499 (Tri. - Del.) and CCE, Chennai v. Fountain Consumer Appliances Ltd. reported in 2004 (171) E.L.T. 329 (Tri. - Chennai) has held that even if some brand name is registered in name of an individual Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (196) E.L.T. 141 (S.C.) has held that when a partnership company M/s. Sant Brass Metal Works owning brand name Sant was dissolved and one of the partner Shri Ram Prakash Sikka set up a new partnership firm M/s. Prince Valves Industry, the new firm does not become the owner of the brand name Sant which continues to be registered in the name of the earlier partnership firm, even though the same has been dissolved, that the ratio of this judgment of the Apex Court is squarely applicable to the facts of this case and, hence, even though M/s. Riat Machine Tools, in whose name the brand name RIAT is registered, has been dissolved and even though the partners of the firm M/s. Riat Machine Tools are the Directors of M/s. Riat Machine Tools Pvt. Ltd., the appellant company does not become the owner of the brand name RIAT, which would continue to be registered in the name of the old firm M/s. Riat Machine Tools, that as is clear from para 4.27 of the order-in-original, the appellant company had submitted forged papers for getting the trade mark assigned in their name for which they are facing proceeding from the office of Registrar of Trade Mark, that even if by an assignment deed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without payment of duty in the name of M/s. Riat Machine Tools, the partnership firm which is claimed by the appellant to have been dissolved and M/s. Machinery Manufacturing Company, none of which had any facility for manufacture. This demand is not contested by the appellant company. The balance amount of duty demand of Rs. 59,43,884/- is on the basis of allegation that the appellant company during the period of dispute were clearing their goods by affixing the same with the brand name RIAT which does not belong to them, but belongs to another person M/s. Riat Machine Tools. On this point while the appellant do not dispute that the brand name RIAT was originally registered in the name of M/s. Riat Machine Tools vide Trade Mark No. 276200 dated 11-11-1971 and Trade Mark No. 289977B dated 6-8-1973 for Crank Shaft Grinding Machines and Surface Grinding Machine respectively, they have not shown any document showing that this brand name has been transferred in the name of M/s. Riat Machine Tools Pvt. Ltd. Even if the applicant s claim that M/s. Riat Machine Tools, a private limited company was converted into a public limited company - M/s Riat Machine Tools Ltd. with the partners of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the circumstances of the case. Thus on question as to whether the Tribunal can modify its stay order, the principle which emerges from the judgments of various High Courts is that while normally this should not be done, it can be done only if the interests of justice so demand and the same is necessary considering the circumstances of the case. 9. In this case, as discussed above, while passing the stay order dated 21-4-2011 ordering pre-deposit of Rs. 32,00,000/- in addition to the amount of Rs. 8,00,000/- already deposited, the Tribunal had considered the written submissions of the appellant which covered all the points now emphasised by the appellant s counsel at the time of hearing of this miscellaneous petition. In that order, the merits of the case and also the question of time bar, had been considered and it had been found that in respect of the same, the appellant have not been able to establish prima facie case. As discussed above, on the question as to whether the brand name RIAT can be said to be owned by the appellant company and on which the bulk of the duty demand of Rs. 59,49,884/- is based, the judgment of the Apex Court in the case of Prince Valves Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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