ORDER
Gowri Shankar, Member (T)
1. The application is tor waiver of deposit of duty of Rs. 1,89,980/- and penalty of Rs. 18,980/-.
2. The duty has been demanded and penalty imposed, on the finding of the Asstt. Commissioner (whose order has been confirmed by the Commissioner (Appeals) that the hydraulic machinery manufactured by the applicant was not entitled to the benefit of the exemption contained in Notification 1/97 for the reason that it bore on it the mark “AW” which belonged not to the applicant but to American Refrigeration Co.
3. The contention of the representative of the applicant that it purchased the entire business including the propriety, goodwill and right to its trade mark of American Refrigeration Co. insofar as it related to manufacture of hydraulic machinery. Sub-clause (h) of Clause 1 specifically includes trade
marks.
4. The departmental representative adopts the reasoning in the Commissioner’s order. This is that the symbol “AW” has been retained by American Refrigeration Co. for its operation other than those in its factory at Pune which was sold to the applicant. The departmental representative was unable to show from the agreement of sale between the parties the existence of any such clause. Clause 13 of the agreement, which imposes a restriction on the vendor not to carry on unspecified activities is relied upon by him. This clause is incomplete. It purports to say that five years from the date of sale it wilt not carry on any business within 250 miles from the place of business of the purchase. Even if we take it to mean that it only related to manufacture or sale of machinery, that still does not prima facie help the department. It is settled law that a trade mark or brand name belonging to one person for one category of goods will be used without entailing the denial of
notification by another person for goods of another category. The business in Kolkata of American Refrigeration Co. which was retained by it was for manufacture and sale of air conditioners and not for hydraulic machinery. We find therefore a good prima facie case for the applicant.
5. Accordingly, we waive deposit of the duty and penalty and stay
their recovery.