Case Law Details
Abhay Industries Vs C.C.E. & S.T. Rajkot (CESTAT Ahmedabad)
CESTAT held that SSI Exemption cannot be denied for Trademark Registration in Family Member name, Jointly in Family Members Name or in the name of partners.
CESTAT find that the limited issue to be decided is that whether the appellant firm is entitle to avail exemption Notification No. 8/2003-CE dated 01.03.2003 in respect of the goods cleared by the appellant bearing the brand name of “Bintex‟‟. We find that the “Bintex” brand is registered with Trade Mark Registry wherein, the appellant partner Shri Rajesh Kumar Harshdrai Punatar is also one of the owner. In this regard, we give here under the scanned copy of the Trade Mark Registration.
From the above registration, it is clear that the appellant‟s partner Shri Rajesh Kumar Harshdrai Punatar is one of the owner of the brand name “Bintex” out of the other family members. It is also submitted by the appellant that Shri. Rajesh Kumar Harshdrai Punatar is a partner in M/s. Abhay Industries from 01.04.2001 onwards. In this fact, we are of the view that the appellant firm using the brand name of “Bintex” for which the appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of the brand name “Bintex”, the appellant firm is eligible for exemption under Notification No. 8/2003-CE dated 01.03.2003.
CESTAT find that this Tribunal in various judgments cited by the appellant held that if brand is owned by any of the member or jointly by the family, any member of the family if use the said brand, it cannot be said that assessee is using the brand name of other person. The present case is on much better footing for the reason that the appellant’s partner Shri Rajesh Harshdrai Punatar himself is one of the owner of the brand “Bintex” as per the Trade Mark Registration, therefore, there is no doubt that the brand name cannot be said to be belonging to any other person. Consequently, the appellant is eligible for exemption notification. Since the demand against the main appellant is not sustainable in view of the above discussion and finding, the penalty on the partner also will not sustain.
Separate penalty on the partner cannot be imposed
Moreover, since the penalty on partnership firm was imposed, a separate penalty on the partner cannot be imposed as held by the Hon’ble Gujarat High Court in the case of PRAVIN N. SHAH & JAY PRAKASH MOTWANI
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved in the present case is that whether the appellant is eligible for SSI Exemption available under Notification No. 8/2003-CE dated 01.03.2003.. The case of the department is that since the appellant has used brand “Bintex” belonging to some other person, benefit of exemption under the said notification is not available.
2. Shri Paresh Sheth, learned counsel appearing on behalf of the appellant submits that the “Bintex” brand is registered in the name of family members of the appellant and appellant is also one of the owner of the “Bintex” brand as per the Trade Mark Registration therefore, it cannot be said that the appellant have used brand name of another person accordingly, the appellant is eligible for SSI exemption under Notification No. 8/2003-CE dated 01.03.2003.. He further submits that even in case though the brand belongs to family member, all the family members are entitle to use the brand for the purpose of availing SSI exemption. As regard the penalty imposed on Shri Rajesh Harshdrai Punatar, he submits that Shri Rajesh Harshdrai Punatar is a partner of M/s. Abhay Industries, therefore, the partner cannot be penalized separately under Rule 26. He placed reliance on the following judgments:- (Page 3)
- M/s Shreeji Enterprise-2018-12-TMI-494 -CESTAT-Ahmedabad
- M/s Yash Machine Tools-2019-02-TMI-1415-CESTAT Ahmeddabad
- Braco Sales Corporation-2019-369-ELT-789-CESTAT-Mumbai
- Laxmi Industries-2013-298-ELT-435-CESTAT-Ahmedabad
- Pravin N. Shah-2014-305-ELT-480-Guj-HC
- Water & Co. -2017-356-ELT-446-Trib-Chennai
- Sunshine Overseas-2016-339-ELT-431-Trib-Ahmd
- Jay Prakash Motwani-2010-258-ELT-204-Guj-HC
3. Shri Tara Prakash, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. On careful consideration of the submission made by both the sides and perusal of records. We find that the limited issue to be decided is that whether the appellant firm is entitle to avail exemption Notification No. 8/2003-CE dated 01.03.2003. in respect of the goods cleared by the appellant bearing the brand name of “Bintex‟‟. We find that the “Bintex” brand is registered with Trade Mark Registry wherein, the appellant partner Shri Rajesh Kumar Harshdrai Punatar is also one of the owner. In this regard, we give here under the scanned copy of the Trade Mark Registration.
From the above registration, it is clear that the appellant‟s partner Shri Rajesh Kumar Harshdrai Punatar is one of the owner of the brand name “Bintex” out of the other family members. It is also submitted by the appellant that Shri. Rajesh Kumar Harshdrai Punatar is a partner in M/s. Abhay Industries from 01.04.2001 onwards. In this fact, we are of the view that the appellant firm using the brand name of “Bintex” for which the appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of the brand name “Bintex”, the appellant firm is eligible for exemption underNotification No. 8/2003-CE dated 01.03.2003. We find that this Tribunal in various judgments cited by the appellant held that if brand is owned by any of the member or jointly by the family, any member of the family if use the said brand, it cannot be said that assessee is using the brand name of other person. The present case is on much better footing for the reason that the appellant’s partner Shri Rajesh Harshdrai Punatar himself is one of the owner of the brand “Bintex” as per the Trade Mark Registration, therefore, there is no doubt that the brand name cannot be said to be belonging to any other person. Consequently, the appellant is eligible for exemption notification. Since the demand against the main appellant is not sustainable in view of the above discussion and finding, the penalty on the partner also will not sustain. Moreover, since the penalty on partnership firm was imposed, a separate penalty on the partner cannot be imposed as held by the Hon’ble Gujarat High Court in the case of PRAVIN N. SHAH & JAY PRAKASH MOTWANI (supra).
5. In view of our above observation, the impugned order is not sustainable hence the same is set aside. Appeals are allowed with consequential relief, if any, in accordance with law.
(Pronounced in the open court) On 05.01.2023)
