9911796707
TMI Blog2017 (10) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... and was engaged in the manufacture of plastic articles falling under Central Excise Sub-Heading 3924.90. (ii) Another unit viz., M/s. Priya Polymers was also located in adjacemnt premises where Mr. K. P. Jose (husband of Smt. Valsa Jose, proprietor of M/s. Priya Plastics) was the Managing Partner. (iii) There was one more unit viz., M/s. Amala Polymers owned by Shri Prijo K.J., younger son of Mr. K. P. Jose, which was located at Ponganamadu, Thrissur District of Kerala. (iv) The department alleges that the appellant viz., M/s. Priya Plastics manufactured plastic mugs bearing brand name of another person namely, Priya Polymers at their factory located in Urban Area of Thrissur Corporation and cleared these mugs without following Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both sides have been heard. 4. The main pleadings of the appellant are that: (i) All the three units belong to the members of the same family and details given are as follows: a. M/s. Priya Plastics started in 1990 Proprietorship concern, where proprietor is Smt. Valsa Jose. b. M/s. Priya Polymers started in 1995 Partnership firm with partners Smt. Valsa Jose and her husband Shri K. P. Jose. c. M/s. Amala Polymers Started in 2001 Proprietorship concern, where proprietor is Shri Prijo Jose son of Shri K.P. Jose and Smt. Valsa Jose (ii) The brand name Priya Polymers - South India belongs to one of the family members of the appellant. Hence, use of brand name belonging to the family members cannot be considered as use of brand name of ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is a partnership firm having partners Smt. Valsa and her husband Shri K. J. Jose. The learned DR also pleads that all these three are independent units having independent registration with Sales Tax Department and are availing separate benefit of small scale industry. Further, it is on record that the two units viz., the appellant unit M/s. Priya Plastics and other unit M/s. Priya Polymers are housed adjacent to each other but have independent registration with the Sales Tax Department and are availing small scale industry benefit separately. The department has treated them as separate units and had disallowed the benefit of Notification No.8/2003 dated 1.3.2003 stating that the appellant cleared the goods under brand name of another pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Minimax . In these circumstances, it cannot be said that the partnership firm started using the name Minimax which belonged to MEI. In the aforesaid circumstances, it can be said that at the most, the name Minimax belongs to both the entities namely, the partnership firm as well as MEI. 15. Admittedly, MEI has not got the brand name/logo Minimax registered either under the Registration Act or under the Trade Mark Act or any other Act. It has also never claimed, at any time, its exclusive rights over the use of logo Minimax and never taken any action against the partnership firm. It is not a case of the department that the said MEI has allowed the partnership firm to use the said name. The Tribunal has also arrived at a finding of fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 against the appellant in respect of the Mutual Agreement. I have read the entire contents of Mutual Agreement. I find that Mr. K.P.R. Sakthivel is also a party to the said Mutual Agreement and no royalty is also payable to the said K.P.R. Sakthivel. Even Mr. K.P.R. Sakthivel has specifically agreed that he cannot use the brand name in the marketing area of the appellant. Thus there seems to be recognition of individual pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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.)]." 6.3 Considering the Hon'ble Supreme Court s decision in the Kali Aerated Water Works (supra) and the Tribunal s decision in the case of Minimax Industries (surpa), the appellant is entitled to the benefit of Notification No.8/2003 as long as they have not crossed the exemption limit given in the said Notification. The Revenue s pleadings and decisions cited are not applicable for the present facts as the brand name used by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
