ORDER
S.S. Kang, Vice-President
1. Common issue involved in these appeals, therefore, are being taken up together.
2. The brief facts of the case that three show cause notices were issued to the appellant for denial of benefit of small scale exemption Notification No. 88/88-C.E. on the ground that they are not the owner of the brand name. M/s. Prakash Gramodyog Ltd. is clearing the goods i.e. detergent powder under the brand name shaving plus which is belonged to M/s. Corona Plus Industries Ltd. M/s. Prakash Gramodyog Ltd. contested the show cause notices on the ground that they are owner of the brand name as they are manufacturing different goods than the goods manufactured by M/s. Corona Plus Industries Ltd. The adjudicating authority held that M/s. Prakash Gramodyog is the owner of the brand name and dropped the demand. However, an appeal filed by Revenue the Tribunal (CEGAT), now CESTAT held that the brand name does not belong to M/s. Prakash Gramodyog and confirmed the demand which relates to normal period of limitation. Against this order passed by the Tribunal the Revenue as well as Prakash Gramodyog Ltd. filed appeals before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide order dated 30-9-2004 remanded the matter to the Tribunal to decide the issue of limitation afresh and also to consider whether the assessee is entitled to claim ownership in respect of the brand/trade name for the period 6-10-97 to 22-12-2003.
3. Subsequent to the order passed by the Tribunal the Revenue requantified the duty as the Tribunal confirmed the demand for normal period of limitation. The appellant filed appeal against that order also. All the appeals are being taking together.
4. The contention of the appellant is that now the trade name shaving plus is registered in their name by the authority under Trade Marks Act w.e.f. 6-10-97. The appellant produced a copy of certificate of registration of Trade Marks issued under Section 23 of Trade Marks Act, 1999. The contention is that in view of this certificate now it cannot be said that the trade mark in question i.e. shaving plus does not belong to the appellant w.e.f. 6-10-97, therefore, the appellants are entitled for the benefit of Notification No. 88/88-C.E. as they are clearing the goods under their own brand name w.e.f. 6-10-97.
5. For the period prior to 6-10-97 i.e. June to October, 1997, the contention of the appellant is that the demand is time-barred, as no suppression can be alleged against the appellant. The appellants were clearing the goods under the brand name shaving plus whereas M/s. Corona Plus Industries manufacturing detergent cakes and the issue in respect of brand name on the different goods is decided by the Larger Bench in the case CCE v. Fine Industries and on appeal filed by the Revenue ultimately Hon’ble Supreme Court settled this issue reported as , therefore, during the period June to October 1997, it cannot be held that appellants were clearing the goods with the brand name of another person with intent to evade payment of duty, therefore, the demand is time-barred.
6. The contention of the Revenue is that the appellant after the start of investigation of present proceedings applied for registration of the trade mark in their own name which was ultimately registered in their name on 22-12-2003, therefore, the trade mark is registered in their name from the date of the certificate. It is also the contention of the Revenue is that the appellant were well aware of the fact that the trade mark under which they are clearing detergent powder belongs to some other person, therefore, they are entitled for the notification hence they had only availed the benefit of the notification during the period in question.
7. We find that in this case the authority under the Trade Mark Act issued a certificate of registration of trade mark under Section 23 of the Trade Marks Act in favour of M/s. Prakash Gramodyog to the effect that shaving plus is registered in their name from 6-10-97. Section 23 of the Trade Marks Act also provides that the Registrar shall, unless the Central Government otherwise directs, register the said trade mark and the trade mark when registered shall be registered as of the date of the making of the said application. As now, the trade mark has been registered in the name of M/s. Prakash Gramodyog w.e.f. 6-10-97 and M/s. Prakash Gramodyog are clearing the goods under their own brand name hence they are entitled for the benefit of notification.
8. In respect of the demand prior to 6-10-97 i.e. June to October 97, we find that issue in respect of the different goods cleared under the same trade mark came before the Larger Bench of the Tribunal in the case of Fine Industries (supra) and the Tribunal held that the trade mark is in respect of the goods and if a manufacturer is manufacturing different goods under the same trade mark the manufacturer is entitled for the benefit of SSI notification. Ultimately, this view was set aside by the Hon’ble Supreme Court in the case of CCE v. Fine Industries (supra). In these circumstances, it cannot be held that the appellant availed the benefit of notification with intent to evade payment of duty, therefore, the demand for the period June to October, 1997 is time-barred, hence set aside. In view of the above discussion, the appeals filed by the Revenue are dismissed and appeals filed by M/s. Prakash Gramodyog are allowed.
(Dictated & pronounced in open Court on 3-1-2006)