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TMI Blog2017 (6) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... tion issued from time to time. It was noticed by the department that the appellants were using the brand name / trade name of other person and also availing the exemption of small scale unit under Notification No.1/93 as amended from time to time. The appellant cleared the goods to the marketing company namely M/s. French Carre Formulations, Chennai (FCF for short) who had applied for trademark registration in respect of certain products. Department was of the view that the appellants were using the brand name belonging to FCF in the products manufactured and cleared by them. A show cause notice was issued for the period from February 1998 to December 2001 raising the above allegations and proposing to recover the duty demand along with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re subject matter of this dispute and that such trade name belongs only to the appellant. (c) The learned counsel argues that the department having not been able to establish that the trademark is owned by any person, the denial of benefit of SSI exemption is unjustified. (d) He also relied on the following judgments/decision:- (i) Commissioner of Central Excise, Delhi Vs. Ace Auto Comp. Ltd. - 2011 (263) ELT 3 (SC) (ii) Astra Pharmaceuticals P. Ltd. Vs. Collector of Central Excise, Chandigarh - 1995 (75) ELT 214 (SC) (iii) Commissioner of Central Excise, Visakhapatnam vs. Balaji Electrodes (P) Ltd. - 2005 (191) ELT 204 (e) The learned counsel has argued on the ground of limitation also. He submitted that the appellant had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded period is right and proper. 5. We have heard both sides and perused the records. 6. The adjudicating authority has dropped the proceedings on a clear finding that the department has not been able to establish that the trademark belongs to FCF. The letter addressed by the Managing Partner of FCF to Trademark registry clearly shows that they have withdrawn their application for registration of trademark. Further, the letter written by the Trademark registry to department evidences that though FCF had applied for registering the trademark in their name, they had not remitted the required fee. When an application has not been presented with the requisite fee, in effect, the application has to be considered as not presented at all. In addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and names were owned by the customers. We find that the Commissioner's findings on the fact that, the brand names are not owned by the customers, is not challenged by the Revenue in the grounds of appeal. The grounds of appeal only rely on the statement of Shri B. Eswara Rao, Managing Director. We have also noted that Shri B. Eswara Rao has not admitted the brand names to be belonging to the customers. The customers have filed their own affidavits as stated by the Commissioner, to dis-own the brand names. In that circumstance, the citation relied by the SDR does not apply to the facts of the case. In the rulings of the Apex Court cited by the learned SDR, the brand name was admittedly owned by another person, while in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name." 7. Further, on the ground of limitation also, it has to be stated that the declaration filed by the appellant gives a detail description of their marketing pattern. In the said declaration, they have stated that they are marketing the goods through FCF and also using the labels affixed on the products. Thus, on such score also, suppression cannot be alleged against the appellant and the demand raised invoking the extended period is unsusta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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