Case Law Details
M/s. Kusum Industries Shri Mithlesh Mathur Vs Commissioner of Central Excise & ST (CESTAT Delhi)
As regards issue (a) above that that appellants are using the brand name of others and they are not entitled to avail the benefit of SSI exemption Notification No. 08/2003-CE dated 01.03.2003, we find that in this, M/s. TCL is issuing purchase order for supply of goods namely, Defoamer under the brand name Neelco. Neelco is the brand of M/s. NASCPL. It is also a fact on record that the appellant is not using the said brand name on their products. Moreover, on the invoices also, the said brand name is not found mentioned in the invoices. These facts are not in dispute. However, we find that during the course of investigation, certain goods were found having the brand name of NASCPL. In that circumstance, the appellant cannot absolve their liability of using the brand name of another person, therefore, using the brand name of another person on the said goods found in their factory. Therefore the decision in the case Superex Industries (supra) is of no help to the appellant as in the said case, the goods were not having the brand name and not indicated on their invoices but in this case, some goods under the brand name of NASCPL were found in the premises of the appellant.
As per the assignment deed, the appellant was entitled to use the said brand name. In that circumstance, it cannot be said that appellant is using the brand name of another person. Further, the similar issue came before the Hon’ble Apex Court in the case of CCE, Ahmedabad vs. Vikshara Trading & Invest Pvt. Limited – 2003 (157) ELT 4 (SC) wherein the Hon’ble Apex Court observed that if there was an assignment of trademark in fact of the assessee, the mere fact that the assignment deed is not registered can not alter the position. Therefore, as the appellant is using the brand name of another person but it was by way of assignment deed. In that circumstances, the appellant is not using the brand name of another person but they are using their own brand name as assigned to them. In that circumstance, benefit of SSI exemption Notification No. 08/2003-CE dated 01.03.2003 cannot be denied to the appellant. Therefore, we hold that appellants are entitled to the benefit of SSI exemption Notification No. 08/2003-CE dated 01.03.2003.
FULL TEXT OF THE CESTAT ORDER IS AS FOLLOWS:-
The appellants are in appeal against the impugned orders for demanding duty, imposing penalty and confiscation of goods alleging that appellants are using the brand name of another person and clearing the goods on the strength of parallel invoices.
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