9911796707
TMI Blog2008 (9) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellants had been issued with five show cause notices proposing to deny the benefit of SSI Exemption under Notifications No. 175/86 and No. 1/93 as the appellants were using the brand name of foreign concern. The appellants denied having used the trade name or brand name or logo of the foreign German company. On 25-4-1988, a Technical Collaboration Agreement was entered into by the appellants with M/s. BKW Kalte - Warme - Varsorgungstechnik Gmbh, West Germany, a German incorporated company. In terms of this agreement, the technical know-how and technical information which was in possession of the foreign German company was transferred to the appellants on payment of consideration of DM 30000 as a lump sum payment. The agreement pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger period was not invocable for confirming the demands. 3. The appellant's pleas have been rejected in Order-in-Original as well as by the Commissioner (A). The Order-in-Original has noted that the goods manufactured by the assessee are affixed and cleared with the brand name "BKW" and therefore, they are not eligible for the benefit of the Notification. German company is also having the same name M/s. BKW Kalte - Warme - Varsorgungstechnik Gmbh, West Germany. The Order-in-Original did not deal with the question of time-bar but confirmed the demands of Rs. 1,22,376/- besides duty of Rs. 12,15,746/- and in toto imposed a penalty of Rs. 13,38,122/-. The Commissioner (A) in the impugned order has also confirmed the Order-in- Original and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.1 It is his submission that in terms of these judgments, the assessee is entitled to use the word "BKW" of the German company as they had paid valuable consideration. He points out to the Supreme Court judgment in the case of CCE, Goa v. Primella Sanitary Products (supra) wherein the Apex Court has confirmed the Tribunal ruling holding that once there is a assignment of trade name on payment of valuable consideration, then there is no violation of SSI Notification. 5.2 He pointed out that in the case of Rakshak Farm Aids Pvt. Ltd. v. CCE (supra) a similar view was expressed by this Bench that once the brand name is assigned to the assessee for use in India on valuable consideration, then the benefit of SSI cannot be denied. 5.3 He refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.) wherein the benefit of SSI Notification was denied, as the agreement also contained a clause that unless otherwise agreed the assessee shall not use the trade name after the expiry of the agreement. She submits that in the light of two judgments, the assessee is not entitled to the benefit of the Notification and the findings recorded by both the authorities are required to be upheld. 6. We have carefully considered the submissions and have perused the terms of the agreement. We notice from the terms of the agreement that the assessee has paid valuable consideration of DM 30,000 to avail the benefit of technical collaboration to receive the technical know-how and technical information concerning the manufacture of products within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CCE, New Delhi (supra) wherein the Tribunal denied the benefit as the agreement also contained a clause that unless otherwise agreed the assessee shall not use the trade name after the expiry of the agreement. We have gone through the agreement and do not find such a clause. Therefore, this ruling of Kenmore Vikas (India) Pvt. Ltd. v. CCE, New Delhi(supra) is clearly distinguishable. 6.2 We find that in the case of Raksha Farm Aids Pvt. Ltd. v. CCE (supra) has granted the benefit of the Notification and assignment of the name belonging to a foreign person to the assessee for use in India. Like-wise, the Chennai Bench in the case of Bhoruka Goldhofer Trailers Pvt. Ltd. v. CCE (supra) has noted that mere use of German name "Goldhofer" al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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