9911796707
TMI Blog2002 (6) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ents for the product being made over the teleshopping network. The representative of these teleshopping network inspects each machine in the presence of the appellant, and if satisfied with the quality places a sticker on it. The sticker bears upon it the logo of this marketing firm, comprising the letters UTS in a distinctive style along with the letters TSN and the word "checked" followed by serial number. 2. Notices issued to the manufacturer and United Teleshopping marketing alleged non payment of duty on goods that it manufacturers and cleared and proposed penalty on the manufacturer and the marketing company. The manufacturer in reply accepted that duty had not been paid but asserted that the clearances were within the duty free limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The counsel for the other respondent contends that the sticker being only for quality control is in the nature of a "certification trade mark" distinct from a regular trademark in the Trade and Merchandise Mark Act, 1958 and Trade Marks Act, 1990. 6. Many of the decisions of the Tribunal that have been relied upon by the respondent to base their finding on the conclusion that the logo of the marketing company or the person other than manufacturer found on the product is less prominent than the logo of the manufacturer. The argument is advanced before us in a different manner that the sticker of the marketing is based in relatively inaccessible of the machine. In our view, such tests have to be viewed with great caution. Whether one mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of brand name of another person would not disentitle the goods to the exemption. Perhaps it could be argued that the basis for this decision such as prominent of marks is questionable. The fact however remains that the respondents would have reasonably believed that, in the light of the exemption available, they were not required to pay duty. The intention to evade duty requires before the proviso to sub section (1) of Section 11A can be invoked, therefore cannot be said to be present. The notice is dated 18-8-2000 invoking the larger period of limitation for clearance made between November 1998 and August 1999 and that there was no basis for invoking the extended period. 8. The penalty therefore also cannot be imposed. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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