ORDER
Gowri Shankar, Member (T)
1. Both the issues, which are involved in this appeal, have already been decided by the Tribunal. The first, the classification of the sanitary napkin manufactured by the appellant has been decided in the appeal of this appellant and another, appeal 3316 and 2214/93. The Tribunal has confirmed the classification of these goods under Heading 48.18 of the Tariff. We are told by the Advocate for the appellant that an appeal has been filed against this order. However, this is a substantive order. Accordingly, we confirm the classification of the goods under Heading 48.18.
2. The other issue is the eligibility to Notification 175/86 of the goods. This has been denied in the impugned order on the ground that the goods bore the brand name “Comfit” or “Comfit Always” which belonged to Christine Hoden (India) Private Limited which was not entitled to the notification by virtue of its turnover exceeding the limit specified in the notification for eligibility to its benefit.
3. The deed of assignment dated 28-6-1987 between Christine Hoden (India) Pvt. Ltd. and the appellant indicates that the label “Comfit Always” with bird device was transferred by Christine Hoden to Primella Sanitary Products for a consideration of Rs. 100/-. It also indicates that an application had wrongly been made by Christine Hoden for registration under its own name under the Trade & Merchandise Marks Act, 1958. An affidavit filed by Terence Ribeiro, Manager Administration, of the appellant had been filed before us. This affidavit says that deed of assignment, and the application for trade mark device of a bird (label) has proceeded to registration and registration certificate is awaited. It is thus clear that from 1986 onwards, Christine Hoden had not claimed any ownership in the trade mark. Therefore, the claim of the appellant that it was the owner of the trade mark has to be accepted. The departmental representative brought to our attention of the order of the Bench ‘C of the Tribunal which we have referred to earlier in appeals E/4349 & 4350/94C (CCE v. Primella Sanitary Products & Christine Hoden (I) Pvt. Ltd.) in which the Tribunal has recorded the contention of the respondent that “the trade name ‘Comfit’ is owned by them and it is duly registered in their name with the competent authorities” to say that, since it has been registered, its transfer requires the concurrence of the competent authority under the Trade and Merchandise Marks Act, 1958. The sentence in the Tribunal’s order refers to the respondent. They were that respondent to the appeal obviously both could not be owning the trade mark at the same time. The issue before the Tribunal was whether the trade mark can be used by any one of this, the department contending that it belonged to Christine Hoden, a foreign firm. This sentence therefore is not relevant.
4. In the result, it must be concluded that the failure to obtain the permission from the trade mark authority by itself does not result in the transfer of the trade mark to the appellant from Christine Hoden ineffective. Christine was therefore the owner of the trade mark from 1986 and hence the provision of paragraph 7 of Notification 175/86 and paragraph 4 of Notification 1/93 will not apply.
5. Appeal allowed. Impugned order set aside.