SSI Exemption - availability of

PJ/Case Laws/2011-12/1253

Case:Commissioner of C. Ex., Bangalore versus Meyer Health Care Pvt. Ltd.

Citation:2011 (267) E.L.T. 145 (S.C)

Issue:-Whether or not the Assignment Deed which was entered into between the respondent and the owner of the trade mark on 6.10.1998 would also be applicable to the case in hand and would date back prior to a period of 1998 and assessee be eligible for exemption?

Brief Facts:- These appeals are directed against the judgment and order of the Tribunal allowing the appeal filed by the Appellant before the Tribunal and holding that since there is an Assignment Deed in favour of the assessee, therefore, the assessee shall be entitled to the benefit of the Exemption Notification.

The aforesaid findings of the Tribunal are under challenge in this appeal.

Appellant’s Contention:- The revenue has submitted that on the date when the case was registered against the respondent, there was no Assignment Deed executed in favour of the respondent and, therefore, the respondent is not entitled to take benefit of the aforesaid Assignment Deed to avail benefit under the exemption notification.

Respondent’s Contention:-The assessee, however, refutes the aforesaid submission contending, inter alia, that so far the brand name is concerned, the owner of the brand name has assigned the trade mark in favour of the assessee and, therefore, in view of the decision of the Supreme Court in CCE, Ahmedabad Vs. Vikshara Trading & Invest P. Ltd. & Anr. [2003(58) RLT 604(SC)] the respondent is entitled to avail the benefit of the Exemption Notification.

Reasoning of the Judgment:-According to the provisions of the Trade Marks Act an application is required to be advertised and a detailed procedure is required to be followed before grant of a registration in favour of a claimant. But once registration is granted in respect of a particular trade mark in terms of the application according to the provisions of the Trade Marks Act, the registration dates and relates back to the date of application.

However, the position appears to be different as has been held by this Court so far excise law is concerned. Admittedly, in the present case, the assignment of the trade mark in question granted in terms of the agreement entered into between the parties was on 6.10.1998, which is subsequent to the date of registration of the case by the Department, which was done on 19.9.1998.

As to whether or not the effect and in fact, the aforesaid Assignment Deed which is granted in favour of the respondent would relate back prior to a date of 19.9.1998 and consequence thereof is a matter which is not decided by the Tribunal. Since the same is an issue which is relevant and relates to determination of the factual aspects, it would be appropriate to have a decision of the Tribunal on the said issue. We consider that it may not be proper for us to decide such a disputed question of fact by ourselves.

Decision:-Matter remitted back to the tribunal for the fresh consideration.

Comments

PJ/Case Laws/2011-12/1253

Post a Comment

Query