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TMI Blog2015 (6) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ught exemption from payment of excise duty in terms of Notification 1/93-CE dated 28.2.1993 (as amended vide Notification No.59/94-CE dated 1.3.1994) for the aforesaid goods manufactured in its factory. This has, however, been denied to the assessee by the Department on the ground that the brand name "Kalimark" has been used on the goods which belong to M/s. Shri K.P.R.Shakthivel and since the assessee is using the aforesaid brand name of the third party, by virtue of para 4 of the aforesaid Notification the exemption would not be allowed to the respondent. This stand taken by the respondent department has been accepted by the CESTAT in its impugned judgment. 2. The Tribunal has noted the fact that business of manufacture and sale of Aerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and also to preserve the established Trade Name and Trade Marks throughout the future generation and agreed on certain terms and conditions and all the parties herein have agreed to abide by them and hence this Deed of Mutual Agreement. 4. Thereafter, this aspect is dealt with in Paras L.M. and N thereof, which read as under: L) If any party comes to know about any infringement and passing of use of any deceptively similar mark on any imitation by any person in the market, then the party in whose area the said imitation, infringement or passing off takes place shall take immediate legal steps against such erring persons at his cost, under the provisions of Trade and Merchandise Mark Act, 1958 or any other common law in which suitable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. The discussion in the order of the Commissioner, on this aspect, reads as under: 23: During the personal hearing Shri Rathina Asohan drew my attention to the certificates issued by the Trade Mark Registry from the year 1948 to 1985 which were filed before the lower authority. I find the Appellant's name also figures in the certificates issued in the year 1962 and 1970 when he became one of the partner of the erstwhile HUF Firm. The appellant have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketing area. 24. I find that the appellant is the legal owner of the trade Marks used in his product in his own marketing area, the Trade Mark certificates produced before me clearly establish that the appellant had been having the right of ownership over the Brand names in the year 1962 itself when he became the coparcener in the HUF firm. The appellant has had his exclusive ownership rights even prior to the said impugned notification. Hence the subsequent notification cannot take away the ownership right of the appellant over the brand names 'KaliMark' 'Bovonto' and 'Frutang' and other brand names and applying the same to the specified goods manufactured by the appellant and marketing the same within his ow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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