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TMI Blog2002 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... stered trade marks "Comfit" along with logo is valid in the absence of registration with the proper authority in terms of the Trade Merchandise Marks Act, 1958? 2. Whether in the absence of registration of the agreement with the proper authority, M/s. Primella Sanitary Products Pvt. Ltd., Cortalim would not be eligible to avail the benefit of Notification 175/86-C.E., dated 1-3-86 as amended and Notification 1/93, dated 28-2-93 in view of Para 7 of Notification 175/86-C.E., dated 1-3-86 and Para 4 of Notification 1/93, dated 28-2-93?" 2. The brief facts necessary for the decision of this application are set out hereunder :- The respondent M/s. Primella Hoden (I) Pvt. Ltd., had filed two classification lists No. 60/92-93 with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent was using the brand name 'Comfit', which is a registered trade mark of M/s. Christine Hoden (I) Pvt. Ltd., and which was not eligible for the benefits under the said notifications. The show cause notice dated 29th June, 1993 is filed with the application and is at Exhibit 'A'. It is stated in the first paragraph of the show cause notice that the respondent had filed two classification lists for its product 'sanitary napkins' bearing brand name 'Comfit Always' belonging to M/s. Christine Hoden (I) Pvt. Ltd. Thus, it is apparent that the show cause notice was issued under an assumption that the brand name 'Comfit Always' belonged to M/s. Christine Hoden (I) Pvt. Ltd. 4. The respondent filed its reply to the show cause notice on 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other words, the CEGAT held that the exemption notifications would apply to the respondent. Paragraphs 7 and 4 of the notification are reproduced hereunder :- "7. The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification : 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 : " 6. On the basis of the finding of the CEGAT, therefore this application under Section 35H of the Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the rate of Customs duty for the purposes of assessment that appeal must be heard by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment, that appeal must be heard by a Special Bench. Cases that relate to the rate of Customs duty for the purposes of assessment and which relate to the value of goods for the purposes of assessment are advisedly treated separately and placed before Special Benches for decision because they, more often than not, are of importance not only to the importers who are parties thereto but also to many other importers who import or propose to import the same or similar goods. Since the decisions of CEGAT in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing from such order of the Tribunal against an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. We, therefore, find considerable force in the submission of the learned Counsel for the respondent that the application filed by the applicant raises issue which relates to the determination of a question having relation to the rate of duty of excise or to the value of the goods for the purposes of assessment and, as such, a reference under Section 35H of the Central Excise Act, 1944 is not maintainable. 11. In the result, therefore, in view of the aforesaid discussion, Miscellaneous Civil Application is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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