Customs, Excise and Gold Tribunal - Delhi
M/S. Dugar Tetenal India Limited vs Cce, Jaipur on 11 April, 2001
Equivalent citations: 2002(147)ELT578(TRI-DEL)
ORDER
G.R. Sharma
1. This is an application for waiver of pre-deposit of duty and penalty. Shri V. Lakshmi Kumaran, ld. Counsel arguing the case for the applicants submits that the applicants had a technical collaboration between them and M/s. Tetenal Vertriebs GmBH, Germany; that under the said agreement, the foreign collaborator was to provide technical know-how to the applicants and for this applicants had to pay a royality of 4% to the foreign collaborator; that the brand name "TETENAL" was registered in the name of the applicants and once the brand name was so registered in their name, they became the owners and therefore, they were the persons who were authorised to use the said brand name in India; that the applicants had filed classification list in 1988 itself wherein they had duly declared that they were using the brand name "TETENAL" which was their own brand name. Ld. Counsel submits that since the brand name was registered in their own name and since they were the owners of that brand name they were entitled to the benefit of Notf. No. 175/86.
2. Ld. Counsel also submits that the present demand is totally barred by limitation as the applicants fully declared that they were using the brand name "TETENAL" in the classification list filed by them. He submits that thus there was no misdeclaration and, therefore the present demand is barred by limitation.
3. Ld. Advocate submits that the applicants are a small scale unit and have been suffering losses and that they were not in a position to make any payment of duty and penalty.
4. Opposing the request of the applicants, Shri M.D. Singh, ld. SDR submits that the issue of using a brand name of foreign company was finally decided by the larger bench of this Tribunal in the case of Namtech Systems Limited [2000 (115) ELT 238]. He, therefore submits that on merits the department's case is fully covered by the ratio of this decision of the Tribunal. He submits that in this case the larger bench of this Tribunal had held that the benefit of small scale exemption under Notf. No. 175/86 dt. 1.3.86 and Notf. No. 1/93 dt. 28.2.93 as amended was not available to the specified goods if they are affixed with the brand name or trade name of foreign a person or trader who is not a manufacture. Ld. SDR also submits that the fact remain that on the date of filing the declaration regarding the ownership of the brand name, the applicants were not yet registered owner of trademark and, therefore there was misdeclaration and therefore longer period has rightly been invoked.
5. Ld. SDR, therefore submits that in view of the above submissions, the applicants may be directed to deposit the entire amount of duty and penalty.
6. We have heard the rival submissions. On merits, we find that the applicants in their name. This application was received on 21.5.85 in the office of the Registrar of Trademark. We note that the authorities finally registered this trademark in the name of the applicants sometime in 1001. We have also perused Section 23 of Trademark Act and we find that under this section the date of receipt of the application is the date from which registered trademark will be effective. Thus, in the present case, registered trademark will take effect from 21.8.85. Thus, we find that prima facie the applicants have a case. We have also perused the decision of the Tribunal in the case of Namtech System Limited. We find that the question of foreign brand name being registered in the name of Indian manufacturer did not come before the Tribunal and thus, we find that prima facie the case is distinguishable.
7. Insofar as the limitation is concerned, we find that the applicants in their classification list had declared that they were the owner of the brand name. From the records placed before us and submissions made, we prima facie find that the longer period was not invocable in the present case. Looking to the above facts of the case, we waive pre-deposit of duty and penalty. The appeal should now come up for regular hearing on 29.5.2001.