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TMI Blog2017 (10) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... nied to the respondents. As in the case in hand, as per settlement agreement dated 21.05.1989, the respondent were having the equal right to use the brand name EVEREST, in that circumstance, it cannot be said that respondents are using the brand name of another person. Therefore, the respondent are entitled to avail the benefit of exemption N/N. 08/2003-CE dated 01.03.2003 - appeal dismissed - decided against Revenue. - E/1734/2008-DB - A/61988/2017-EX[DB] - Dated:- 12-10-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Sattapal, AR for the Appellant Shri B.L. Narsimhan, Advocate for the Respondent ORDER Per : Ashok Jindal Revenue is in appeal against the impugned order wherein the ld. Commissioner (Appeals) has allowed the benefit of exemption Notification No. 08/2003-CE dated 01.03.2003 and the demands raised against the appellant have been set-aside. 2. Brief facts of the case are that the respondent is manufacturing car washer pumps and clearing the same without payment of duty by availing the benefit of Notification No.08/2003-CE dated 01.03.2003 under brand name 'Everest'. The period of dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents opposed the contention of the ld. AR and submits that initially it was a partnership firm comprising its partners as Smt. Asha Khanna w/o Shri Jitendra Nath Khanna, Shri Pran Nath Khanna and Smt. Usha Khanna w/o Shri Pran Nath Khann in the name of M/s. Everest Engineering Works (EEW for short) using the brand name 'Everest'. In May 1989, a dispute arose between the partners and it reached to Settlement. As per settlement agreement the parties had the right to use the brand Everest individually or working together for manufacturing the products as EEW. It was further acknowledged that the parties have been doing business together. The settlement agreement also provided that all the three parties will apply for registration and the parties will not do so individually. Thereafter, the respondents formed a firm by way of an agreement dated 29.05.1989 between Shri Jatinder Khanna and Mrs. Rashmi Khanna. Shri Pran Khanna and Smt. Usha Khanna set up another firm in the name of Everest Engineering Works (EEW-1) after recording the fact that earlier firm EEW has been dissolved on 17.07.1989. On 19.09.1989, Mrs. Asha Khanna filed a suit for dissolution of EEW and rendition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Respondent firm was formed by way of an agreement between Jatinder Khanna and Rashmi Khanna (w/o Ravi Khanna). 17.07.1989 Pran Khanna and Usha Khanna set up another firm by the name Everest Engineering Works (EEW-1) after recording that EEW stands dissolved. 19.09.1989 Asha Khanna filed a suit for dissolution of EEW and rendition of accounts numbered as no. 12/1 989. 03.03.1991 After Jatinder Khanna expired, his wife Asha Khanna and son Sanjay Khanna joined as partners in the Respondent firm. 01.04.1992 Certain terms of the partnership were amended. 01.04.1992 Certain terms of the partnership were amended. 1992-2003 Various persons related to the civil dispute filed for registration of the trademark EVEREST parties to the present dispute filed for registration of the trademark. The Respondent craves leave to refer to the table referred to at page 4 of the Appeal. 1994 13.02.2006 05.07.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividually or working together for manufacturing the same product of earlier EEW. Further, we find that Smt. Asha Khanna, partner of respondent was the party to the settlement who was entitled to use the brand name EVEREST for manufacturing the product manufactured by earlier EEW. In that circumstance, we hold that the respondents are using their own brand name. We further take note of the fact that partnership firm namely, EEW was dissolved and the Civil Court has granted status-quo with effect from 27.09.2006 which means that the persons using the brand name EVEREST shall continue to use the brand name EVEREST till disposal of civil suit No. 134/2006. We also take note of the decision that ld. AR has relied on, in the case of Bentex Motor Control Industries (supra) , which is in fact, in favour of the respondent that as per the agreement, all the partners are eligible to use the brand name as it would be belonging to all of them. Admittedly, in this case also, the partners of EEW are having the right to use brand name EVEREST individually or working together. Therefore, benefit of Notification No. 8/2003 dated 01.03.2003 cannot be denied to the respondents. 7. We further tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the issue and observed as under:- 19. On reading the above quoted paragraphs from the above judgment, with which we agree, it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. This deeming fiction cannot be extended to the Excise Law. It is confined to the provisions of the Trade Marks Act. In a given case like the present case where there is evidence with the Department of the trade mark being owned by M/s. Kay Aar Biscuits (P) Limited and where there is evidence of the appellants trading on the reputation of M/s. Kay Aar Biscuits (P) Limited which is not rebutted by the appellants (assessee), issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. In the present case, issuance of registration certificate with retrospective effect from 30-9-91 will not tantamount to conferment of exemption benefit under the Excise Law once it is found that the appellants had wrongly used the trade mark of M/s. Kay Aar Biscuits (P) Limited. 9. The issue was also examined by Hon ble A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition is that the mark is used with the purpose to show connection of the said goods with some person who is using the name or mark. Therefore, in order to qualify as brand name or trade name it has to be established that such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer. Further the issue was again examined by the HAC in the case of Kali Aerated Water Works (supra) and observed as under:- 2. The Tribunal has noted the fact that business of manufacture and sale of Aerated water was started in the name of Kalimark Aerated Water Works by the HUF of which M/s. Shri P.V.S.K. Palaniappa Nadar was the Karta. Later on it was converted into a joint family business of Sh. Palaniappa Nadar and his three sons and a daughter. At some point of time the parties/partners fell apart and entered into a family settlement which is contained in Deed of Mutual Agreement dated 12-3-1993. The Tribunal has recorded that in terms of this Mutual Agreement signed between the parties the ownership of the aforesaid trademark/brand name Kalimark no longer remained with the appellant asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father and four sons and the brand ownership is joint and each member of the family can use the brand for developing their own manufacturing and trading activities. 6. In view of the above position, the allegation of the department that the respondent was using the brand name of another person is not sustainable. Reliance placed by the department on the decision in the case of Kali Aerated Water Works (cited supra) dealt with a different situation altogether. In that case, the brand was owned by one Shri KPR Sakthivel and other members of the family were allowed to use the brand name by a deed of mutual agreement. In that context it was held that the use of the brand name and ownership are distinct and different. However, the facts obtaining in the present case are different. In the instant case, as per the Memorandum of Understanding which relates to joint ownership of brand 'RAVI MASALE', all the five members of the family are joint owners of the brand name RAVI MASALE and each one of them could use the brand name in their own manufacturing and trading activities. Hence the ratio of the aforesaid judgment relied upon by the department is not applicable to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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