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TMI Blog2017 (10) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Premises were searched on 09.07.2004 and documents were recovered and on the basis of further investigation and statements, it was alleged that appellants are not entitled to avail SSI exemption. On the basis of same, the show cause notice was issued to all the three assessees to deny the benefit of SSI exemption notification. Consequently, the matter was adjudicated, SSI exemption was denied and demand of duty was confirmed against M/s. Rajeev Metals Pvt. Limited and M/s. Sayal Manufacturing and Trading Corporation, along with interest and penalties were imposed on these two assessees. Penalty on Shri Mohinder Lal Sayal of M/s. Sayal Manufacturing and Trading Corporation has also been imposed. The demand proposed in the show cause notice against M/s. Rajeev Engineering Works were dropped. The assessees are in appeal against denial of SSI exemption consequently demanding duty along with interest and imposing penalties and the Revenue is in appeal against dropping of demand against M/s. Rajeev Engineering Works. 2. As all the appeals are arising out of a common order, therefore, all are being disposed of by this common order. 3. Ld. Counsel of the appellants made submissions wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with some person using it. For this purpose, it has to be established that mark, symbol, design etc. had acquired reputation of nature of one is able to associate them with manufacturer. Therefore, SSI exemption cannot be denied. He also relied on the decision in the case CCE, Ahmedabad vs. Premier Polymers 2011 (266) ELT 365 (Tri. Ahmd.) to say that trade mark registration certificate produced by the assessee shows the name belong to assessee and name could not have belonged to someone else even before the date of issuance of registration. In that circumstance, benefit of exemption notification cannot be denied. Therefore, he prays that impugned order qua denial of benefit of SSI exemption to M/s. RMPL is to be set-aside. (ii) As regards M/s. Sayal Manufacturing & Trading Corporation : Ld. Counsel relied on the arguments advance in the case of M/s. Rajeev Metals Pvt. Limited and also submits that brand name PRIMA duly registered in the name of assessee for manufacturing Kerosene Barrel Oil Pumps, Rotary Oil Pumps and semi-Rotary Oil Pumps and parts of grease guns. The trade mark authorities have recognised the assessee and granted to certificate of registration with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the appellant is engaged in the activity of trading also. It was on that basis and evidence, the adjudicating authority has dropped the demand. Moreover, the said trading activity comprises only 4.15% of the total value of clearances, which is evident from the record. In that circumstance, the adjudicating authority has rightly dropped the demand against M/s. Rajeev Engineering Works. As the Revenue has not come up with any contrary evidence to show that assessee is engaged in manufacturing the goods under the branded name PRIMA/ PRIMA-RMPL. Merely because the goods found in the factory bears the brand name PRIMA/ PRIMA-RMPL, which has been procured by the assessee from the manufacturers of the said branded goods, the adjudicating authority is correct in dropping the demand. Therefore, Revenue s appeal has no merit and is required to be dismissed. 4. On the other hand, ld. AR strongly opposed the contention of the ld. Counsel and submitted that it is fact on record that brand name PRIMA is owned by M/s. Rajeev Metal Industries and is registered in their name since 1975. That fact has not been denied by the assessee, therefore, the assessees are using the brand name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees are entitled to avail the benefit of SSI exemption notification as held by the Hon'ble Supreme Court in the case of Kali Aerated Water Works vs. CCE, Madurai 2015 (320) ELT 692 (SC) wherein the Hon'ble Apex Court observed as under:- 4. It is clear from the above that the trade name Kalimark Aerated Water Works and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. The discussion in the order of the Commissioner, on this aspect, reads as under : "23. During the personal hearing Shri Rathina Asohan drew my attention to the certificates issued by the Trade Mark Registry from the year 1948 to 1985 which were filed before the lower authority. I find the appellant s name also figures in the certificates issued in the year 1962 and 1970 when he became one of the partner of the erstwhile HUF Firm. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove 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.)]. As the Revenue has not come up with any contrary evidence that Shri M.L. Sayal is not owner of brand name, therefore, it cannot be said that the assessees are using the brand name of others. 6. We further find that in the case of M/s. Rajeev Metals Pvt. Limited, the brand name is being used is PRIMA-RMPL. The allegation of the Revenue is that PRIMA-RMPL is similar to PRIMA and therefore, PRIMA-RMPL is brand name of other person. That allegation is not sustainable as trade mark authorities have recognised PRIMA-RMPL as a different brand name from PRIMA brand name and after recognising, they have registered with the name of the assessee, which is evident from the registration certificate placed on record and extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reover, on merits, as it has been held that M/s. Sayal Manufacturing and Trading Corporation is entitled for SSI exemption, no penalty is imposable on Shri M.L. Syal and the same is set-aside. 9. With regard to appeal filed against M/s. Rajeev Engineering Works, it is fact on record that M/s. Rajeev Engineering Works has purchased goods from M/s. Rajeev Metals Pvt. Limited and M/s. Sayal Manufacturing and Trading Corporation under the brand name PRIMA and PRIMA-RMPL respectively and no contrary evidence has been produced by the Revenue to substantiate the allegation that M/s. Rajeev Engineering Works is manufacturing the goods under the brand name PRIMA/ PRIMA-RMPL. Therefore, the adjudicating authority has rightly dropped the demand against M/s. Rajeev Engineering Works holding that M/s. Rajeev Engineering Works is engaged in the activity of trading of the goods provided in the name PRIMA/ PRIMA-RMPL. Therefore, we do not find any infirmity in the impugned order. Accordingly, the appeal filed by the Revenue is dismissed. 10. In the result, the following order is passed:- (a) M/s. Rajeev Metals Pvt. Limited is entitled for SSI exemption. Consequently, the demand of duty along w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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