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TMI Blog2008 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... i S. Kohli, Advocate, for the appellants. Shri V.K. Zelawat, Assistant Solicitor General, for the Respondent. [Order per: S.K. Kulshrestha, J.].- This appeal has been filed by the assessee appellants under the provisions of Section 35 (g) of the Central Excise Act, 1944. The appeal has been admitted on the questions formulated in order dated 22.9.2005 which read as follows:- (1) "Whether in view of the clause 4 of the notification No.1/93-C.E., dated 28.2.1993 exemption to a manufacturer for the first clearances of the duty and concessional duty on subsequent clearances as provided in the notification can be disallowed if the specified goods bear a brand name or trade name of another person although the proprietor of the brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earances of the specified goods up to the value of Rs. 30,00,000/- and concessional duty on subsequent clearances in the case of manufacturer having clearances not exceeding Rs. two crores in the preceding financial year. There is no dispute that the appellant No.1 fulfilled this condition and was granted eligibility in this behalf. The real contest of the parties, however, is on the construction of Clause 4 of the Notification whereof the relevant provision reads as under:- 4. The exemption contained in this notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person: Provided that nothing contained in this paragraph shall be applicable to the specified goods which are com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 19.4.1996 as the Tribunal did not remand the case for the said period. 6. We may record to complete the narration of facts, that the Department filed an appeal before the Tribunal which was decided by order dated 30.12.2004 and the Tribunal observed that the benefit of small scale exemption notification is not available to M/s Jepika Paints upto 18.4.1996 and remanded the matter to the Adjudicating Authority for consideration of the period commencing from 19.4.1996 for decision afresh. The question of imposing penalty was also left open to be decided by the Adjudicating Authority. 7. It is in view of the above order of the Tribunal that the present appeal has been filed against refusal of the Tribunal to accept the case for exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an assignment in favour of the first respondent and that fact was not in serious dispute the mere fact that the assignment was not registered could not alter the position. Therefore, we decline to interfere with the order made by the Tribunal and to that extent the appeal is dismissed in respect of respondent No.1. 9. Learned Senior Counsel for the appellants further invited attention to the decision in Reckitt Colman of India Ltd. v. Collector of Central Excise -1996 (88) E.L.T. 641 (S.C.) in support of his contention that without there being a case of the Revenue the Tribunal erred in segregating the period from 19.4.1995 to 19.4.1996 in considering the availability of exemption under the Notification. 10. The shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signable and transmissible, whether with or without the sale of the business concerned and in respect of either or all the goods in respect of which trade mark is registered or of some of these goods. It has not been disputed before us that the goods manufactured by the appellants to whom the trade mark has been assigned are not the same as the merchandise of the Proprietor. Attention was also invited by learned Solicitor General to Section 44 with regard to necessity of registration of such assignments. Section 44 of the Trade and Merchandise Marks Act, 1958 makes provision as under:- 44. Registration of assignments and transmissions.- (1) where a person becomes entitled by assignment or transmission to a registered trade mark, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g acted upon the agreement in question for the period subsequent to 19.4.1996, we are of the considered view that the Department cannot take the stance contrary to its own action and conclusion. 14. Another contention which was raised by the learned Assistant Solicitor General is that in the statement recorded by the Excise Department, the Proprietor of the firm did not point out that the said mark was assigned to them by the Proprietor. In the Notification itself, explanation-IX mentions that brand name or trade shall mean a brand name or trade name whether registered or not. Thus, reference to brand name or trade name in Clause-4 of the Notification is not to the registered trade name or brand name. Under these circumstances, and in v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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