9911796707
TMI Blog2016 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... actured by them. The Appellants have been availing SSI exemption under relevant Notifications, from time to time. The Dept. questioned their availment of SSI exemption based on the allegations that they are not the sole owner of brand name Kwality as many others like M/s. Pure Ice Cream Co. Pvt. Ltd. of Bombay for Ice Cream, M/s. Kwality Ice Cream (CAL) Pvt. Ltd. of Calcutta for Ice Cream, Shri Harbhans Lal of Uttar Pradesh for Confessionary, Namkeen & Biscuits, Shri Nitin Kumar Goyal of Assam for Tea & Packet Tea, M/s.Kwality Petha House for Petha Dalmoth, Gajak, Rabery, Bhujia, Chips & Sweet preparations and Shri Govind Kumar of Agra for Confectionery are also using the brand name Kwality for their various products. Accordingly, Show Cause Notice dated 3.5.2005 was issued by the Additional Director General, DGCEI, Mumbai, proposing to deny SSI exemption for the period 2000-2001 to 2002-2003, which was confirmed by the Commissioner, vide Order-in-Original dated 31.07.2006 and the Appellants filed an appeal (No. E/3158/2006) against the same before this Tribunal. Thereafter, periodical SCNs issued were confirmed by the adjudicating authorities and upheld by Commissioner (Appeals) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irely fortuitous and could not on a fair appraisal of the marks indicate any such connection, then the benefit of exemption would be available; that the said case considers judgments in Mahan Dairies - 2004 (166) ELT 23 (SC) and Rukhmani Pakkwell (supra); that Hon'ble Supreme Court in Meghraj Biscuits, reported in 2007 (210) ELT 161 (SC) has held that registration with the trade mark registry cannot be the sole criteria for allowing or denying SSI exemption; that Hon'ble Supreme Court in the cases of Nirlex Spares, reported in 2008 (222) ELT 3 (SC) and Stingen Immuno Diagnostics, reported in 2015 (318) ELT 585 (SC) has held that there should be a connection/nexus between the brand name, the product, the person and the use of same/similar brand name belonging to someone else, for denying the SSI benefit; that Hon'ble Tribunal in Ideal Industries, reported in 2009 (233) ELT 379 (T) and Kanjoos Fine, reported in 2006 (193) ELT 77 (T) has held that the same brand name can be for different products and SSI exemption cannot be denied; that registration of trade mark by someone would not entitle to that person to interfere with or restrain the use of identical trade mark by any other pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with any evidence that there is any indication or any connection whatsoever with the said brand name quality owned and used by M/s. Pure Ice Cream Co. or any connection with the said M/s. Pure Ice Cream Co.; that Hon'ble Apex Court in Rukmani Pakkwell would also support the appellants contention that for disentitlement of exemption, the usage of brand name should indicate a connection in the course of trade, which is absent in the present case and the Department has also failed to prove the same; that the very fact that various other persons are also using the brand name quality for different products would support the appellants contention that their use of quality brand name is purely accidental and not intentional; that the brand name quality belongs to a family concern initially known as M/s. Kwality Bakery & Stores which belonged to the father and his brother of the present Partner, Shri Parvez Saghir Ansari; that after the demise of his father and division/partition in the family, Shri Parvez Ansari started his firm under the name & style M/s. Jamal Bakery since 1987 and continued to manufacture Cakes & Pastries under the brand name quality and, therefore, they are eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Cream; that applications for registration of Shri Harbans Lal of Uttar Pradesh for Namkeens and Biscuits, Shri Nitin Kumar Goyal for Tea and Packet Tea, Shri Govind Kumar of Agra for Petha, Gajak etc. are also pending; that from the above search report, it can be seen that as on 21.12.2001, M/s. Pure Ice Cream are the legal owners of the brand quality and such report do not mention even application filed by the appellants; that the appellant was neither legal owner of the brand name nor are they authorized to use such brand name; that once a brand is registered with Department of Brands, such person will be the owner of the brand and nobody else can claim the ownership thereof; that if any manufacturer claim the benefit of any of Notification, the onus to prove eligibility to such claim is upon the said person for entitlement of the said claim; that the appellants cleared the goods under brand name quality without taking registration and without informing the Department; therefore extended period is very well invocable in the present case. The learned AR has also relied upon various judgments. 5. We have considered the rival submissions and perused the records. 5.1 We find cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. Therefore, the matter needs to go back to the Adjudicating Authority for reconsideration of the issue of brand name and availability of SSI exemption under relevant Notifications in the light of our observations and the ratio judgments of Hon'ble Apex Court discussed above. 5.2 As regards the appellants claim of time bar of the demand covered under Appeal No. E/3158/2006 and Appeal No. E/1236/2009, we find that it has been their consistent stand that the brand name quality belongs to them because of their continued and uninterrupted use for long period of time and, therefore, they were not expected to inform the Dept. that they are using somebody else brand name on their products. It was the submission of the appellants that till the proceedings initiated by the Dept. they were not aware that the brand name quality used by them on their products was registered in the name of someone else, including M/s. Pure Ice Cream Co. Therefore, we are of the view that the Adjudicating Authority's findings in Para 34 of the impugned Order dated 31.7.2006 that the appellants had suppressed from the Department their manufacture of quality branded products, despite the fact that this bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their claim of SSI exemption for the products. Be that as it may, even there were divergent decisions from the Hon'ble Apex Court on the issue of use of brand and availability of SSI exemption in various circumstances. We also find that the issue in dispute relates to interpretation of law and there can be a possibility of differing interpretations of the same. Considering overall facts and circumstances of the case, holistically we are of the view that there was no willful suppression of facts or mis-statement on the part of the appellants. Therefore, the penalties imposed on them are not sustainable. Accordingly, we set aside the same. 5.5 With the above discussions, we set aside the demand covered under Appeals No. E/3158/2006 and No. E/1236/2009 beyond the normal period of one year, as time barred. We also set aside the penalties imposed on the appellants in each of the appeals. We remand all matters to the Adjudicating Authority for fresh decision on the issue of brand name based on our observations and judgments cited. We also direct the Adjudicating Authority to determine duty liability, if any, after extending the cum-duty benefit, as discussed above. Needless to add here ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
