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TMI Blog2015 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... enue for setting aside OIA No. 319-CE/APPL/KNP/2006 dated 26/7/2006 under which First Appellate Authority has allowed the appeal filed by M/s Parag Enterprises (respondent in appeal No. E/3474/2006). Appeal No. E/3509/2006 has been filed by the main appellant M/s Parag Enterprises against OIO No. 19/Commissioner/MP/2006 dated 31/7/06 under which Adjudicating Authority has confirmed a demand of ₹ 30,40,894/-, alongwith interest, and also imposed equivalent penalty under Section 11AC of the Central Excise Act, 1944 readwith Rule 25 of Central Excise Rules, 2002, Rule 25 of Central Excise Rules, 2001 and Rule 173Q of the Erstwhile Central Excise Rules, 1944. Penalties of ₹ 1 lakh each have been imposed upon Shri Ashok Kumar Gupta, Authorised Signatory of the main appellant and Shri Rajesh Sisodia, Ex-Authorised Signatory of the main appellant, for which appeals No. E/3510/2006 and E/3511/206 respectively have been filed. 2. Shri Anurag Kapur (Advocate), appearing on behalf of M/s Parag Enterprises and others, argued that his clients are manufacturing Liquid Shoe Finish and Liquid Shoe Polish bearing a brand name TEGU, which is the brand name of M/s TEGU Chemische Fabrik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 (S.C.) ; (v) Himachal Wireless Ltd. vs. CCE, Chandigarh reported in 2010 (262) E.L.T. 619 (Tri. Del.) ; (vi) Reiz Electronics Pvt. Ltd. vs. CCE, Delhi II reported in 2007 (211) E.L.T. 475 (Tri. Del.) ; (vii) Collector of Central Excise, Calcutta I vs. ESBI Transmission Private Limited reported in 1997 (91) E.L.T. 292 (Cal.) ; (viii) Rathi Power Pvt. Ltd. vs. CCE, Pune reported in 2003 (153) E.L.T. 59 (Tri. Mum.) ; (ix) Bothara Agro Equipments Pvt. Ltd. vs. CCE, Aurangabad reported in 2007 (214) E.L.T. 121 (Tri. Mum.) ; and (x) ESBI Transmission Pvt. Ltd. vs. CCE reported in 1997 (91) E.L.T. 47 (Cal.). 3. Shri R.K. Mishra, learned AR appearing on behalf of the Revenue argued that both the Adjudicating Authorities have held that certificate dated 23/12/2005 issued Trade Marks Registry is for artistic work and not a transfer of brand name. That there is no agreement between the appellant and the Germany Company regarding use of brand name in India. That even if appellant got the brand name registered in India still they will not be eligible for Small Scale exemption under Notification No. 8/2003-CE dated 01/3/2003. That Larger Bench of CESTAT in the case of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Merchandise Marks Act, 1958 (43 of 1958) and the use of the name `VULCAN/VULCAN-type couplings, by virtue of an assignment and thus, the exclusive right to manufacture, sell offer for sale, supply and/or distribution of VULCAN/VULCAN-type couplings and spares by any other firm in India other than the assessee, is illegal. In this connection it is stated that `M/s. VULCAN COUPLINGS are established designers and manufacturers in Germany for `VULCAN COUPLINGS and selling the same all over the World especially in the Marine applications field. Now Para 7, the Notification No. 175/86-C.E., dated 1-3-1986, as amended states, inter alia, the exemption contained in this notification shall not apply to the specified goods with a brand name or trade name (registered or not) or another person who is not eligible for the grant of exemption under this notification. Since `VULCAN COUPLINGS of Germany are not entitled to SSI benefits by virtue of being a foreign company, hence the benefit of Notification No. 175/86-C.E. would not be available to M/s. ESBI Transmissions Pvt. Ltd., in respect of the diaphragm couplings (flexible) in question affixed with the brand/Trade name `VULCAN of a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption of law and fact. The exemption under the aforesaid notification could be taken away only if it is found that the petitioner as a manufacturer had affixed the specified goods with a brand name or trade name (registered or not) of another person who was not eligible for the grant of exemption under the aforesaid notification. It has been rightly contended on behalf of the petitioner that the petitioner has used a brand name of its own and of which it is the registered owner. In such a situation the provisions of Clause 7 of the aforesaid notification will not apply to the case of the petitioner. 13. In my judgment the contention made on behalf of the petitioner must be upheld. 14. The petitioner is the owner of the registered trade mark Vulcan. By virtue of the provisions of Section 28 of the Trade Merchandise Act the petitioner has acquired an exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered. The petitioner is entitled to obtain relief against any person in respect of infringement of the trade mark in the manner provided by the Trade Merchandise Marks Act. Therefore, no other person apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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