Full Judgment
2. The appellants M/s. Suvik Electronics Pvt. Ltd. was engaged in the manufacturing of two different and separate class of goods i.e. Medical Instruments classifiable under Chapter 90 of the Central Excise Tariff Act and Servo Regulators and UPS which are classifiable under Chapter 85 of the Central Excise Tariff Act. It may be stated here that the appellants are a small scale industrial unit claiming exemption under Notification No. 175/86. They were manufacturing goods namely medical instruments which come under Class 10 of the Trade & Merchandise Marks Act, 1958 and Servo Regulators and UPS which are classifiable under Class 9 of the said Act of 1958. A show-cause notice was issued on 13-7-1994 charging the appellants that they have violated paragraph 7 of the Notification. In the notice it is alleged that small scale industries exemption availed by the appellant is not correct in law and they should be denied of the same. A reply was filed by the appellants by its letter dated 1-11-1994 at Page 164 of the paper book refuted the allegations made in the show-cause notice and stated that at paragraph VIII of the reply to the show-cause notice that Class 9 as contained in the Trade & Merchandise Marks Act, 1958 deals with Scientific, Nautical Surveying and electrical apparatus instruments and Class 10 deals with Surgical, Medical, Dental and Veterinary instruments. In respect of Class 10 the application for registration of the trade mark was made by some other company called Suvik Projects & Research Company Pvt. Ltd. on 11-5-1982 and on 4-1-1989 the said company had transferred and assigned the said trade mark to the appellants. In the instant case under consideration do not come within the purview of the Class 10 of the Trade & Merchandise Marks Act, 1958. The Commissioner who adjudicated the matter by the impugned order had held that the statement of General Manager Mr. Prabhandham Raghuram has admitted that the brand name 'Suvik' belong to Suvik Projects & Research Company Pvt.
Ltd. who is neither a manufacturer nor a trader and the appellants are using the brand name on the medical equipments and other machineries manufactured by the appellants. Hence they are denied exemption under Notification No. 175/86. Hence the present appeal.
3. Shri V. Lakshmi Kumaran along with Shri S.J. Vyas, the Ld. advocates appearing on behalf of the appellants contended that the approach of the Commissioner in passing the impugned order is absolutely wrong in law. He has misdirected himself and appreciated the fact in a wrong way. He invited our attention to the statement given by Mr. Prabhandham Raghuram at Page 94 of the paper book. He also stated that the goods under consideration before this Tribunal comes under Class 9 of the Trade & Merchandise Marks Act, 1958 and not under Class 10. The reference to registration of the Trade & Merchandise Marks Act is in respect of Class 10. Since the question involved is in respect of goods coming under Class 9 of which appellants themselves have filed an application for registration, the denial of the benefit of Notification No. 175/86 is wrong in law.
5. We have considered carefully the contentions raised by both sides.
To appreciate the main points here in this appeal, it is relevant to extract the statement given by Mr. Prabhandham Raghuram: "In case of Uninterrupted Power Supply Systems falling under Class - 9 of Trade & Merchandise Marks Act, 1958 and Chapter 85 of Central Excise Tariff Act, 1985, we Suvik Electronics Pvt. Ltd. applied for registration with Trade Marks registry as early as 2-12-1987 vide Application No. 480572 for registration of "SUVIK" logo and on 1-3-1988 vide Application No. 485189 for registration of "SUVIK", Trade mark "SUVIK" is a specific word composed of alphabetical letters of English language whereas "SUVIK" logo is a specific design and style. Both are different to each others as trade marks.
Since we have applied for registration of these trade marks with trade marks registry for Class 9 goods we are sole properties and users of these trade marks under the Trade & Merchandise Marks Act, 1958, in Class 9 goods. Under the Trade and Merchandise Marks Act, 1958 in Class 9 goods. Enclose herewith copy of application Nos.
480572 and 481189 duly signed in token of having seen and being a true copy. "SUVIK" originally belonged to M/s. Suvik Projects and Research Company Pvt. Ltd., Ahmedabad (SPARC) which is unregistered and "SUVIK" logo is originally registered in the name of M/s. Suvik Projects and Research Company Pvt. Ltd., Nowroji Vakilk Compound, Police Lines, Shahibaugh, Ahmedabad vide Trade Mark No. 394492 in Class 5 goods and Trade Mark No. 389835 in Class 10 goods, under Trade & Merchandise Marks Act, 1958 and they are the original proprietor at first instance of the said trade marks. M/s. Suvik Projects & Research Company Pvt. Ltd. is neither manufacturer nor trader of any goods and they are not having small scale industries registration certificate. Since SPARC Pvt. Ltd. is not at all engaged in any manufacturing and/or trading activity, question of availment of SSI exemption under Notification No. 175/86 or 1 /93 does not arise. They are also not entitled for SSI exemption due to this fact." The reasons for denying the exemption is the above statement. The Commissioner in the impugned order has stated that Mr. Prabhandham Raghuram has admitted that the brand name belong to Suvik Projects & Research Company Pvt. Ltd. In the reply to the show-cause notice at Page 171 the appellants clearly mentions what are the goods come under Class 9 of the Trade & Merchandise Marks Act and what are the goods come under Class 10. It is an undisputed fact in this case that the goods come under Class 9 of the Trade and Merchandise Marks Act, 1958.
It is true that the term "SUVIK" has been registered by Suvik Projects & Research Company Pvt. Ltd. in respect of goods coming under Class 10 of the Trade & Merchandise Mark Act, 1958 which not the question before the Tribunal in this case. Shri Lakshmi Kumaran, during the course of arguments invited our attention to the decision of the Tribunal in Opus India v. Collector of Central Excise -1992 (62) E.L.T. 447.
6. In our view the instant case can be decided without reference to the said case. It is an admitted fact that goods in question do not come under Class 10 of the Trade and Merchandise Marks Act, 1958. The trade mark which is owned by Suvik Projects & Research Company Pvt. Ltd. is in respect of goods under Class 10 of Trade & Merchandise Marks Act, 1958, and in the instant case the goods come only under Class 9 of the Trade & Merchandise Marks Act, 1958 and hence the approach of the Commissioner is absolutely wrong, because he has misdirected himself wrong in this case. Since no case has been made out for violation of Paragraph 7 of the Notification No. 175/86 the appeal stands allowed.
The impugned order is set aside.