G.A. Brahma Deva, Member (J)

1. Since the issue involved is common and the appeals are inter-connected, they are, therefore, clubbed together and are being disposed of by this common order.

2. The point to be considered in these cases is whether the appellants are entitled for S.S.I. exemption under Notification No. 175/86 dated 1-3-1986 as amended by Notification No. 223/87 dated 22-9-1987 in respect of goods manufactured by them viz., L.P.G. Gas Stoves under brand name 'Hotline'.

3. Arguing for the appellants Shri V. Lakshmikumaran, learned Advocate, submitted that point at issue is to be decided with reference to the main appellants M/s. Opus India and if the Tribunal comes to the conclusion that they are entitled to claim S.S.I. exemption under Notification No. 175/86 as amended, it would not be any difficulty for the remaining appellants to succeed on this issue as they were licensed to manufacture the gas stove with brand name of 'Hotline'. He said that in the orders relevant to these appeals while denying the benefit of S.S.I, exemption under Notification No. 175/86, the Assistant Collector held that appellants were not entitled for exemption as the brand name 'Hotline' was owned by M/s. Fusebase India Pvt. Ltd., who themselves are not entitled for S.S.I. exemption and further observed that trade mark was registered in the name of individual Ms. Akash Bajaj and not in the name of concern M/s. Opus India. The Collector (Appeals) while confirming the order had gone one step further observing that trade mark was owned by Mrs. Akash Bajaj wife of Director of M/s. Fuse Base (India) Pvt. Ltd., without any basis and in fact it was neither true nor was the case of the Department at any stage during the proceedings.

4. The sum and substance of the argument on behalf of the appellants is that M/s. Fuse Base (India) Pvt. Ltd. was the owner of trade mark 'Hotline' in respect of the goods in question upto July, 1987 and thereafter by the deed of assignment dated 31-7-1987 and for a consideration Fuse Base transferred the proprietorship of the trade mark 'Hotline' to M/s. Opus India whose sole proprietor was Ms. Akash Bajaj. This fact was evidence by the certificate issued by the Senior Examiner of Trade Marks, Trade Marks Registry, Bombay under the Trade and Merchandise Marks Act, 1958. Since the ownership of the brand name 'Hotline' of the appellants M/s. Opus India was not in dispute and cannot be disputed as such, there is no justification for denying the benefit of SSI exemption under Notification No. 175/86.

5. Shri Lakshmikumaran submitted that Trade Mark 'Hotline' had already been assigned to M/s. Opus India in July, 1987 much prior to the amendment of Notification No. 175/86 by amending Notification No. 223/87 in September. They never anticipated amendment at the time of acquisition of trade mark and had no plan to avoid tax. He contended that the provisions of para 7 of Exemption Notification No. 175/86 are not at all applicable in view of the fact that only in cases where the brand name of another person ineligible to exemption Notification No. 175/86 is affixed then only the concessional rate of duty under Notification No. 175/86 is deniable to such branded goods. He also drew our attention to the clarification issued by the Board reported in 1989 (41) E.L.T. at Page T-3 on similar facts and circumstances of the case and on the very example of trade marks 'hotline' wherein it was clarified :-

"The matter has been examined by the Board. It is observed that as per Section 8 of the Trade and Merchandise Marks Act, 1958, a trade mark can be registered in respect of any or all goods. In other words, a trade mark need not necessarily be in respect of all goods unless the registration has been so acquired. It is, therefore, quite possible and permissible to have the same trade mark, brand name for different classes of goods owned by different persons. In the instant case, the company 'A' are the legal registered owners of the tra