ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-original No. 9/2003 dated 10.9.2003 filed by the Revenue being aggrieved with the dropping of demands by the Commissioner of Central Excise, Bangalore on the ground that the assessee is the owner of the brand name “HITTCO” in terms of Deed of Assignment dated 29.5.95, which is entered into much prior to the period 1998-2002. The Commissioner after due examination has found that the SSI benefit cannot be denied to the assessee in view of the Deed of Assignment being registered in their favour and ownership of the trade name is also in assessee’s favour. He has relied on a large number of judgments. Para 11 and 15 of the Commissioner’s order giving the benefit to the assessee, is reproduced herein below.
11. Thus, in the said case, the benefit of the SSI exemption was denied, doubting the very authenticity and existence of the Deed of Assignment claimed by the appellant, while in the former case (i.e., M/s. Nulon India) there was no Assignment Deed in favour of the appellant. On the other hand, in the current case before me, there was an Assignment Deed dated 25.09.95 in favour of the assessee, the existence of which was neither disputed nor doubted by the Department. Further, there was a Lease Agreement dated 16.5.95 between M/s. Hindustan Tools Corporation and the assessee, as per which the former had leased out the land, building, plant and machinery etc., in favour of the latter for an interest free lease deposit of Rs. 90 lakhs and from then onwards the lessor (i.e. M/s. Hindustan Tools Corporation) had never manufactured the impugned goods nor used the brand name in question. To substantiate their claim that M/s. Hindustan Tools Corporation had not manufactured the impugned goods nor used the brand name, the assessee have produced the copies of ‘NIL’ Return filed by M/s. Hindustan Tools Corporation with the Commercial Tax Authorities, Income Tax Return filed with Income Tax Department, covering letter submitted to the Commercial Tax Authorities for surrendering the Registration Certificate etc. In view of the above, the ratio of the judgments of the Tribunal in the two cases cited in the Show Cause Notice dated 5.6.03 is clearly distinguishable and not applicable to the present case. On the other hand, the assessee have cited the following case laws, to substantiate their claim that they became eligible to use the brand name by virtue of the Assignment Deed dated 25.09.95 entered into between both of them, thereby making them eligible to the benefits of the SSI exemption as per the Notifications, which were in force during the disputed period in respect of the goods manufactured and ‘ cleared by them with the brand name “HITTCO”.
(i) Gavs Laboratory (P) Ltd. v. CCE, New Delhi .
(ii) Charkha Detergents & Soaps Enterprises v. CCE, New Delhi .
(iii) Livender Singh v. Commissioner of Central Excise, New Delhi 2001 (137) ELT 1329 (Tri.)
(iv) Bull Worker Enterprises v. CCE, Mumbai-IV .
15. The other ground cited in the Show Cause Notice for demanding the duty is the communication of the assessee to the Range Superintendent vide., their letter dated 22.5.03 regarding the transfer of the brand name in their favour. On perusal of the said letter, it is observed that at para 1 of the letter the assessee have given details about the registration of the brand name “HITTCCO” in the name of M/s. Hindustan Tools Corporation with the Trade Marks Authority, filing of renewal application, payment of renewal fees, issuance of renewal certificate etc. At para 2 of the letter, the assessee have informed that they have not yet decided as to the transfer of the Trade Mark to their (i.e., the assessee) name and as and when they take decision and apply for transferring the Trade Mark to their name, they would inform accordingly. The transfer of brand name/trade mark mentioned in the said letter refers to the application to be made by the assesses with the Trade Marks Authorities under the Trade and Merchandise Marks Act, 1958 for the transfer of brand name in their favour and the same has nothing to do with the transfer of the brand name in their favour in terms of the Deed of Assignment dated 25.9.95. The Department has not, at any point of time, disputed the existence of the Deed of Assignment dated 25.9.95 nor its authenticity and the question is whether the assesses is entitled to use the brand name owned by M/s. Hindustan Tools Corporation, by virtue of the said deed of assignment dated 25.09.95 and whether they are eligible to the benefit of SSI exemption notifications. Hence, the assessee’s letter dated 22.5.03 addressed to the Range Superintendent is of no significance to the issue in dispute.
2. The learned JDR submits that in terms of the Trade and Merchandise Act, there is no transfer in the assessee’s favour and the Deed of Assignment dated 25.9.95 cannot be accepted, as there is no passing of consideration while transferring the trade name.
3. The learned Counsel submits that the machinery and the plant had been transferred to the assessee and therefore, once the Deed of Assignment had been executed, then the ownership of the brand name is also passed on to the assessee. He relies on the Apex Court judgment rendered in the case of CCE v. Primella Sanitary Products 2005 (184) ELT 125 (SC) wherein this very issue has dealt. The Apex Court has held that once the Deed of Assignment has been executed, then the benefit of SSI Notification cannot be denied. He further referred to the similar orders passed by the Western Bench following this judgment and another judgment of Apex Court rendered in the case of P&B Pharmaceuticals v. Collector 2003 (153) ELT 14 (SC) as in the case of D.P. Sanghvi v. CCE, Mumbai . The learned Counsel submits that there is no infirmity in the order and therefore, the order should be dismissed.
4. On a careful consideration, we agree with the learned Counsel and the findings recorded by the Commissioner in the impugned order. The impugned order has correctly followed the ratio of the Tribunal and Apex Court judgments. The mere fact of not passing on the consideration, is not the factor for denying the benefit of the Notification. Once the Deed of Assignment has been executed in assessee’s favour transferring the ownership right of the trade mark, then the assessee is deemed to be the owner of the trade mark in terms of the Apex Court judgments cited supra. There is no merit in this appeal and therefore, the appeal is rejected.
(Pronounced and dictated in open Court)