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TMI Blog2018 (12) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... f the department is that the brand name used by the appellant belongs to some other person in their family, therefore, they are using the brand name belonging to other person. Accordingly, demand of duty of Rs. 1,16,395/- was confirmed and equal amount of penalty was imposed on the appellant firm and penalty of Rs. 50,000/- was also imposed on Shri Pravinbhai D. Patel, the authorized signatory of the firm. On an appeal, the ld. Commissioner (Appeals) upheld the order-in-original. Therefore the present appeal. 2. Shri Gunjan Shah, ld. Chartered Accountant appearing on behalf of the appellant submits that as per the facts in the present case, the brand name used by the appellant are also used by other family members for their business. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited vs. CCE, Vapi - 2010 (255) ELT 295 (Tri. Ahmd.) He submits that as per the above judgments, if the brand name belonging to other person used by the assessee, they will not be eligible for SSI exemption. 4. We have considered the submissions made by both sides and perused the record. We find that there is no dispute to the fact that the allegation of the Revenue that appellant has used the brand name which is also used by the family members of the appellant. Accordingly, the same brand name is used by authorized family members for conducting their respective business. We find that in these facts, the issue has been considered in the case of Laxmi Industries vs. CCE, Rajkot (Supra) by this Tribunal wherein the judgments of Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that "Minimax" has not acquired any such reputation that it can be associated with "MEI"." 7. Reliance was also place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such brand name are eligible for exemption under Notification No. 1/93-C.E. The said clarification given in Paras 3 & 4 of the above Circular dated 1-9-1994 is reproduced below : "3. In this connection, the relevant extracts of the opinion of the Law Ministry are reproduced below :- "Perusal of the said explanation (Explanation IX to the Notification No. 1/93-C.E.) will show that to satisfy the requirements of brand name or trade name, it is necessary that the trade name must indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication or identity of that person. Unless connection between the trade name and the person with whom that trade name is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person. In the absence of any other owner of brand name 'AVON' being established, the ratio laid down by Hon'ble High Court of Delhi in the case of Minimax Industries (supra) and Delhi CESTAT judgment in the case of Elex Knitting Machinery Co. (supra) confirmed by Hon'ble High Court of Punjab & Haryana and Hon'ble Supreme Court will be squarely applicable to the facts of the present case. No other contrary judgment on the issue has been brought to our knowledge. 10. So far as the time bar nature of the demand is concerned, it is observed that the appellants filed suitable declarations under Rule 174 of the Central Excise Rules and Notification No. 1/93-C.E., dated 28-2-1993 as amended. Therefore, it cannot be held that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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