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TMI Blog2016 (1) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... Water and soft drinks under the brand name of "Kali Mark". They marketed various flavours in the name of "Kali Kola", "Bovonto", "Solo", "Frutang", "Captain", "Trio", "Club Soda" etc., and claiming SSI exemption under Notification No. 8/2003-CE dated 01.03.2003 as amended. The adjudicating authority in all these cases denied the benefit of exemption notification on the ground that the brand name of "Kali Mark", "Bovanto and Frutang are the brand name of other persons and held that they are liable to pay central excise duty with interest under Section 11 A (1) and 11 AB of the CEA, 1944 and imposed penalty under Rule 25 of CER, 02, and rejected the appeals filed by all the appellants. Hence, the present appeals. 2. The brief facts of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.08 83,018 83,018 13 387/12 -do- 97/12 dt. 24.05.12 01.04.10 to 19.06.10 15,44,913 3,75,000 3. The Ld. Advocate Ms. Sridevi appearing on behalf of the appellants submits that their business was done as a family business under the HUF identity till the same was partitioned on 31.03.77 and pursuant to this partition w.e.f. 01.04.77 all the units located at different places started functioning with their own financial investments as an individual unit and managed by the descendents of the founder and they continued the business in the name of Kali Aerated Water Works with the name of the place suffixed. They used the brand name concurrently without registration in the name of the owners of such independent units. Shri K.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification No. 8/2003 dated 01.03.2003 as amended since they were using the brand name of other persons. He further submits that they have not included the value of the exempted goods into the aggregate value. Hence, the appellants are not eligible for SSI exemption under the said notification. 5. We have carefully considered the submissions from both sides and perused the records, Tribunal's Order in the assessee's own case (supra) and the Honble Supreme Court order in the assessee's own case (supra), we find that the Bench had discussed the issue in detail and denied the SSI exemption benefit and allowed the Revenue appeal. In this regard, we find that the Hon'ble Supreme Court in the appellant's own case (supra) set aside the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing persons at his cost, under the provisions of Trade and Merchandise Mark Act, 1958 or any other common law in which suitable an effective remedies are provided. (M) In any party falls to initiate legal action against such erring persons in order to protect the Trade Mark and Trade name, then any other party can take action against such defaulting parties as well as against the person committing such infringement, passing off or imitation for suitable remedy. (N) For removal of doubts, it is clarified specifically that the right to use the Trade name M/s. Kali Aerated Water Works and Trade Marks mentioned above are solely vested with the parties 2 to 10 herein who are the direct male lineal descendents and subject to clause G here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates issued in the year 1962 and 1970 when he became one of the partner of the erstwhile HUF Firm. The appellant have been marketing his products only within his own marketing area. It is not the case of the Revenue that any other person is using the same Brand names in the same area. Similarly the appellant is not selling his goods outside his marketing area. So far his business is concerned the appellant appears to be the only legal owner of the Trade Mark within his marketing area. This has been clearly brought out in the Mutual Agreement dated 12-3-1993 which has been duly presented on 12-3-1993 itself for registration whereas the impugned Notification No. 59/94 came into effect only from 1-4-1994 and hence no motive can be attributed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to the specified goods manufactured by the appellant and marketing the same within his own marketing area in exclusion of others. On perusing the trade mark certificates, Decree of the Civil Court, Mutual Agreement dated 12-3-1993 and also considering the above contentions, I find that the appellant is the legal owner of the brand names within his marketing area." 5. It is thus manifest that the appellant has been using its own brand name "Kalimark" and it belongs to the appellant. In view thereof, the case of the appellant is squarely covered in its favour by the judgment of this Court in Civil Appeal No. 9157 of 2003 titled CCE, Hyderabad-IV v. Stangen Immuno Diagnostics decided on 19-3-2015 [2015 (318) E.L.T. 585 (S.C.)]. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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