ORDER
P.S. Bajaj, Member (J)
1. The above captioned appeals have been directed against a common order-in-appeal dated 8-3-2001 vide which the Commissioner (Appeals) has confirmed the duty and penalties on the appellants as detailed therein. The facts are not much in dispute. Appellant No. 1 is engaged in the manufacture of aluminium ladders under the brand name of “SUMER” which belongs to appellant No. 4. On conducting enquiries by the Central Excise Officers, it revealed that this brand name was got registered by appellant No. 4 with Trade Mark authorities in the year 1971 and they had been getting the aluminium ladders manufactured from appellant No. 1 under that brand name, on payment of fabrication charges. Similarly, appellant No. 3 had also been getting the ladders manufactured from appellant No. 1 in that very manner. On completion of enquiry, show cause notice was served through which duty demand of Rs. 14,71,045/- for the period 1994-95 to 28-9-1996 was raised by denying the benefit of exemption under Notification 1/93-CE, and penalty was proposed to be imposed also, on appellant No. 1 and other appellants. After getting the reply wherein appellant No. 1 denied of having used the brand name of another person i.e. appellant No. 4 and claimed himself to be sole user and owner of the brand name. The other appellants also denied the allegations made against them in the show cause notice. But the adjudicating authority confirmed the duty demand with penalty against appellant No. 1 and also imposed penalties of Rs. 25,000/- each on other appellants under Rule 209A. That order had been affirmed by the Commissioner (Appeals).
2. The only issue involved in these appeals is as to whether the appellant No. 1 had used the brand name of another person (appellant No. 4) in the manufacture of the goods (aluminium ladders) and is not entitled to the benefit of the exemption Notification 1/93-CE. The learned Counsel has contended that there is no reliable evidence on the record to prove the ownership of brand name “SUMER” being used by appellant No. 1 on the goods, of appellant No. 4. Rather it stands proved that appellant No. 1 is using this brand name since December 1990 without any interruption and had even applied for its registration in their name with Trade Mark authorities. He has also further contended that appellant No. 4 had even relinquished their ownership of the brand name by executing relinquishment deed in 1998 effective from 1991. Therefore, provisions of para 4 of Notification No. 1/93 are not attracted for denying the benefit of the Notification.
3. On the other hand, the learned JDR has only reiterated the correctness of the impugned order.
4. We have heard both the sides. We find that the benefit of the exemption Notification No. 1/93 had been denied to the firm appellant No. 1 solely on the ground that during the period in question, they had been using the brand name “SUMER” on the products, which belonged to appellant No. 4 (Sumer & Co.). But we do not find any cogent and reliable evidence to substantiate this ground. We find that the initial registration of the brand, name “SUMER” in the name of appellant No. 4 came into an end in the year 1985 and thereafter they never applied for its renewal. Therefore, they ceased to be the legal owner of the brand name. It also stands amply proved on the record that the firm appellant No. 1 came into existence in 1990 and since then the brand name “SUMER” had been used by them without any objection from the side of appellant No. 4, on their products (aluminium ladders) and they had even applied for the registration of that brand name in their own name in December 1995 and there is no evidence on record to suggest if their request before the Trade Mark authorities had been opposed by appellant No. 4. Even in the present proceedings none from appellant No. 4 had come forward to claim the ownership of the brand name and to assert that the appellant No. 1 had no right to use the same. The long uninterrupted use of the brand name by appellant No. 1 goes a long way to prove that the appellant No. 4 had ceased to be its user and owner since 1985. They did not apply for the renewal of the registration of the brand name to the Trade Mark authorities.
5. Apart from this appellant No. 4 had executed assignment/relinquishment deed in favour of the appellant No. 1. Though this deed was executed in the year 1998, the same was made effective from 1991. The execution of this deed had not been denied by appellant No. 4. Therefore, this deed became effective from the date mentioned therein. In this context reference may be made to the ratio of law laid down in Charkha Detergents & Soap Enterprises v. CCE, New Delhi, 2002 (48) RLT 528 and Tainwala Personal Care Products P. Ltd. v. CCE, Surat II, 2002 (52) RLT 991 wherein it has been observed that the effective date of assignment deed assigning brand name would be the date mentioned therein and not the date of registration. Therefore, it can be safely concluded that appellant No. 4 by virtue of this assignment, became entitled to use the brand name “SUMER” in their own right.
6. In the light of the facts and circumstances discussed above, it is difficult to conclude that the appellant No. 1 had used the brand name of another person so as to deny them the benefit of the small scale exemption Notification 1/93 for the period in dispute. Therefore, the impugned order of the Commissioner (Appeals) is set aside and the appeals are allowed with consequential relief if any, permissible under the law.