Availability of SSI Exemption

PJ/Case Laws/2011-12/1152

Case: Commissioner of C. Ex., Ahmedabad v/s Premier Polymers

Citation: 2011(266) E.L.T. 365 (Tri. – Ahmd.)

Issue:- SSI Exemption – use of brand-name – Revenue to establish that brand name belonged to some one else.

Brief Facts:- Respondent was registered as a Small scale unit and availing benefit of SSI Exemption. The Department issued show cause notice to the respondent on the ground that the SSI exemption was not available to them as they were using the brand name “citizen” on their product animal cages. The duty demand was confirmed and penalty was imposed on the respondent.

In appeal, the Commissioner (Appeals) set aside the order of the Adjudicating Authority. Revenue has thus filed appeal before Tribunal.

Appellants Contention:- Revenue submitted that the respondent was using the brand name of someone else and that they had admitted to the brand name to being to some one else. Therefore, they were not eligible for SSI exemption.

Respondents Contention:- Respondent submitted that the Commissioner (Appeals) has passed order in their favour on the grounds that department has not produced any evidence to show that the called brand name “Citizen” was embossed on the animal cage. The respondent also submitted that revenue has failed to establish that who the actual owner of this brand name is.

Respondent submitted that they have already registered the brand name in their own name and pending registration they were free to use the same which did not belong to any particular manufacturer or any unit. He submits that brand “Citizen” in respect of animal cage has been registered in their own name vide Trade Mark Registry Certificate. The certificate was issued on 31.03.2010 and therefore, the same could not be produced at the time of adjudication or appeal.

They also relied upon the decision of the Supreme Court in the case of CCE, Mumbai Vs. Bigen Industries Limited [2006(197) ELT 305 (S.C.)] to submit that once the trade mark is registered in the name of assessee by a statutory authority authorised to do so recognizing the assessee to be the sole proprietor of trade mark, the benefit of SSI exemption would be available.

Reasoning of Judgment:- The Tribunal held that the department did not produce any evidence to show as to who was the actual owner of the brand before the Commissioner (Appeals) at the time of consideration of the matter. Revenue had also failed to prove that the brand name belongs to someone else. The trade mark registration is in the name of the respondents, respondents have been able to establish that the trade mark belongs to them and brand name could not have belonged to someone else even for the earlier period. The decision of the Supreme Court cited by the respondents also supports their case.

Decision:- Revenue’s appeal rejected.

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PJ/Case Laws/2011-12/1152

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