2005 (2) TMI 308

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..... to 27th September, 1996. This Brand name has been owned by another unit M/s. Protech Appliances Ltd. (PAL in short), Ernakulam. He confirmed the demand of Rs. 31,51,829/-, the duty evaded under Section 11A of the Central Excise Act, 1944. Further he imposed equal penalty under Section 11AC. Interest under Section 11AB was also demanded. The appellants challenged the impugned order before this Tribunal on various grounds. 3. Shri Joseph Kodianthara, the learned Advocate appeared for the appellants and Shri R.V. Ramakrishnappa, the learned JDR appeared for Revenue. 4. The learned Advocate made the following submissions : (1)     The appellant who is manufacturing soda maker used the brand name "Mr. Butler" even from the .....

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..... wn their application for registration of Trade Mark on 8-11-2002. Since the entire issue was dropped by the AC in his order dated 25-1-95, there is absolutely no justification for the Commissioner to proceed against the appellants and confirm the demand. As the issue is settled by M/s. PAL's conceding to the appellant for their better right over the brand name, there is no reason for reopening the issue. There is also no justification for invoking the extended period. The learned counsel relied on the following case laws. (i)       In CCE, Cochin v. Mamma Products, it has been held that SSI exemption is not deniable when both persons holding trade name jointly and manufacture and trade in different territories .....

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..... no evidence to show that M/s. PAL is the exclusive owner of the brand name 'Mr. Butler'. In fact the records reveal that both the units have applied for the same brand name. In a situation like this, we cannot decide the ownership of the brand name. When the ownership of a brand name cannot be decided, we cannot say that one unit uses the brand name of another. Only if it is shown that the brand name is exclusive ownership of one, the other can be denied the benefit. Moreover, there is absolutely no ground for invoking the extended period, especially after the jurisdictional AC dropped the proceedings. Hence, the OIO is devoid of any merits. We set aside the same allowing the appeals of the party.  
Case laws, Decisions, Judgement .....

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