Customs, Excise and Gold Tribunal - Delhi
Rational Business Corporation vs Commissioner Of Customs on 10 December, 2003
Equivalent citations: 2004(168)ELT463(TRI-DEL)
ORDER K.D. Mankar, Member (T)
1. The issue raised in the instant appeal relates to infringement of the provisions of Section 77 of the Trade and Merchandise Marks Act, 1958. The appellants imported a consignment of recycled inkjet cartridge declaring them as Expert Recycled InkJet Cartridges for HP printers of various models. On examination of goods, it was revealed that, these were recycled inkjet cartridges containing old PCB and other parts. The cartridges were also found to bear HP marking (logo of Hewlett Packard).
2. The point at issue is, as to whether or not, the appearance of logo "HP" on the cartridges amounts to use of "HP" brand and consequently, an infringement of Section 77 of the Trade and Merchandise Act, 1958.
3. Heard both sides. Sub-section (1) of Section 77 of the said Act is extracted below:
"(1) A person shall be deemed to falsify a trade mark who either -
(a) Without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or
(b) Falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise."
4. The lower authorities held that existence of HP logo amounts to breach of Trademark. The appellants dispute this claim. As can be seen from the facts of the case, the imported inkjet cartridges are supplied by overseas supplier and are intended to be sold under the brand name "Expert". Notwithstanding this, one side of the cartridge has an engraved brand name/logo of Hewlett Packard. It is obvious that the imported goods are reconditioned ones, made from old used inkjet cartridges. It is but natural that the said cartridges would continue to carry the old engraved brand name, whatever that may be. In this case it happens to be HP. But on account of existence of such brand name, whether there is a breach of provisions of the Trade and Merchandise Mark Act, 1958, is a matter to be decided by the authorities who are competent to decide the subject and the customs cannot pre-judge such an issue. The provisions of Section 77(1) of the said Act as reproduced above also indicate that, the making of that trade mark or deceptively similar Trade Mark or falsifying any genuine Trade Mark is an offence. In this case Trade Mark as such has not been tampered with.
5. In any event, the appellants themselves did not indent for the goods bearing HP mark. Since the process of recycling involves correction of old and used cartridges, such situations are bound to crop us and in the interest of justice, I feel that the request of the appellants to either
(a) Allow the clearance after defacing the HP logo or
(b) allow the appellants to re-export the goods deserve a second look.
6. Accordingly, I set aside the orders passed by the lower authorities and remand the matter to the Asst./Deputy Commissioner concerned, to pass fresh orders within three months from the date of receipt of this order, after following the principles of natural justice. The appeal is allowed by way of de novo remand to the adjudicating authority.