Judgment:
1. This appeal arises from Order-in-Appeal No. 91 and 92/2005 CE dated 31.3.2005 by which the benefit of SSI Notification has been denied on the ground that the assessee is utilizing the trade name "ESL's Titanic" owned by another individual. The appellants have denied that the brand name belongs to another person. They have in the reply to the show cause notice clearly informed the authorities that they have already acquired the trade name "ESL's Titanic" from the previous owner who was not using the same. They have produced the extract of Board's minutes dated 2.4.1999, on which a resolution was passed for acquiring brand name "ESL's Titanic". From its earlier owner M/s. ESL Industries Ltd. by incurring expenses. They have produced a Deed of Assignment dated 23.12.2000 by which the brand name so assigned to the appellants was passed on for some consideration. However, the authorities have rejected this evidence on the ground that the transfer of brand name has been fabricated to show that the use of brand name had already been permitted by the actual owner and that they have misled the department "by creating anti-dated documents. However, no evidence has been produced by the Revenue from the M/s. ESL Industries Ltd. including any statement from its Managing Director to show that it is a fabricated document, which was in existence. Therefore, the learned Counsel submits that so long as the Assignment Deed has been executed and the brand name has been acquired by them in their own right in terms of the 'Trade and Merchandise Act', then the appellant cannot be denied the benefit of the Notification. He relied on the ruling of the Apex Court rendered in the case of CCE, Ahmedabad v. Vikshara Trading & Invest. P.Ltd. wherein the Apex Court has upheld the grant of the benefit of Notification on the basis of the assignment of trade name in favour of the assessee.
2. Learned Counsel further relied on another Apex Court judgment rendered in the case of CCE, Goa v. Primella Sanitary Products 2005 (184) ELT 125 (SC) which also has upheld the grant of benefit of SSI Notification on assignment of trade mark for a consideration of Rs. 100/-.
2.1 The learned Counsel also referred to Tribunal rulings on the eligibility of benefit of Notification on assignment of trade mark as referred in the case of:Bull Worker Enterprises v. CCE, Mumbai-IV 3. The learned JDR on the other hand relied on the Apex Court judgment rendered in the case of CCE, Trichy v. Grasim Industries which has denied the benefit of SSI Notification on the use of brand name or trade name used by any other person. He refers to the Tribunal ruling rendered in the case of AVA Engineering Co. v.CCE, Chandigarh-II Assignment Deed, as the same was not in existence during the visit of Excise Officers and the same had not been relied in the reply to the show cause notice. He referred to the dismissal of the appeal by the Apex Court as reported in 2004 (163) ELT A 61 (SC) on similar issue in the case of M/s. Varuna Pipes (P) Ltd. was also rejected by Tribunal which has also been . He prayed for 4. On a careful consideration of the submissions, we notice that the Tribunal ruling in AVA Engineering Co. (supra) and M/s. Varuna Pipes (P) Ltd. (supra) relied by learned JDR are clearly distinguishable as the Assignment Deed was not in existence when the Excise Officer visited the factory and the same had also not been relied in reply to the show cause notice. There was a doubt about its existence. The situation is clearly distinguishable in the present case. The appellant had relied on the Assignment Deed in the reply to the show cause notice including the Minutes of the Board meeting resolving to acquire the trade mark in the year 1999. The Original Authority rejected the documents on the finding that the said fabricated documents had been created anti-dated. However, no evidence have been produced by the Revenue to show that they are fabricated. They have not examined the Managing Director of M/s. ESL Industries Ltd. who was its original owner to show that he has not transferred the trade mark by the Assignment Deed dated 23.12.2000. The appellant's Minutes of Board meeting dated 2.4.1999 clearly recorded about acquiring the brand name "ESL's Titanic" from M/s. ESL Industries Ltd. In terms of the Apex Court judgment cited by the learned Counsel noted supra that once Assignment Deed are in existence, they have to be taken as a bonafide document and benefit has to be extended. Therefore, from the judgment relied by the learned Counsel, it is clear that the appellant had acquired the trade name or brand name in their own right by deed of assignment and therefore, they are eligible for the benefit of the SSI Notification. The impugned order is not legal and proper and the same is set aside by allowing the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)