9911796707
TMI Blog2023 (5) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods and some person using such names or mark with or without indication of the identity of that person - In the present case, is it an undisputed fact that the companies which were using the trade mark NUCOR WELD and KEMTRODE since 1987 became defunct in 1997 and by way of MoU and Deed of Assignment, authorised the present appellants to use the brand name for which the appellant also made an application for registration of the said brand name in their favour with the trade mark authorities in the year 1999 before using the same brand mark. The trade mark authority ultimately registered the brand name NUCOR WELD and KEMTRODE in their favour subsequently in the year 2004 and 2006. The parties to the brand name never contested abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared the goods claiming Nil rate of duty. Alleging that they have affixed the brand name of NUCOR WELD and KEMTRODE belong to others, show-cause notice was issued to them for recovery of duty of Rs.3,79,496/- for the said period denying the benefit of exemption Notification No.08/99-CE dated 28.2.1999. On adjudication, the demand was confirmed with interest ad penalty on the appellant-company along with other noticees including Shri Kamalesh N. Desai, Managing Director under Rule 209A of Central Excise Rules, 1944. Aggrieved by the said order, they filed appeal before the Commissioner (A) who in turn partially allowed the appeal to the extent of setting aside penalty on other companies i.e., M/s. Good Weld (P) Ltd. and M/s. Spectra Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegation of the department is that they have violated the condition of the exemption Notification No.8/99-CE dated 28.2.1999 by affixing the brand name which belongs to others, is incorrect and unsustainable. He submits that the Hon ble Supreme Court in series of cases laid down the principle that the benefit of Notification can be denied only in such cases when a connection in the course of trade between the specified goods and person using the said name or mark is established. In the present case, the company who were using the brand name NUCOR WELD and KEMTRODE since became defunct and assigned in favour of the appellant, therefore, the appellants are entitled to the benefit of exemption Notification No.8/99-CE dated 28.2.1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the present appeal for determination is whether by affixing the brand name NUCOR WELD and KEMTRODE to the manufactured welding electrodes the appellants become ineligible to the benefit of exemption Notification No.8/99-CE dated 28.2.1999. 6.1 It is the allegation of the department that the said brand name belongs to the erstwhile company viz., M/s. Nucor Weld Pvt. Ltd. and Kemtrode Pvt. Ltd. and even though the appellant after signing MoU dated 19.1.1999 with M/s. Nucor Weld Pvt. Ltd. and Deed of Assignment dated 14.6.1999 with M/s. Kemtrode Pvt. Ltd., they cannot claim the benefit of Notification No.8/99-CE dated 28.2.1999 since the said brand names used by them belongs to others. On the other hand, it is the claim of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person using such names or mark with or without indication of the identity of that person. In the present case, is it an undisputed fact that the companies which were using the trade mark NUCOR WELD and KEMTRODE since 1987 became defunct in 1997 and by way of MoU and Deed of Assignment, authorised the present appellants to use the brand name for which the appellant also made an application for registration of the said brand name in their favour with the trade mark authorities in the year 1999 before using the same brand mark. The trade mark authority ultimately registered the brand name NUCOR WELD and KEMTRODE in their favour subsequently in the year 2004 and 2006. The parties to the brand name never contested about Assignment Dee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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