P.C. Jain, Member (T)

1. Shri Kunhikrishnan, learned consultant in this stay application praya for waiver of pre-deposit and stay of recovery of Rs. 49,532.41P. demanded in the order-in-original by the Asstt. Collector and confirmed by the Collector (Appeals) in the impugned order. Shri Kunhikrishnan states that the reason for demand is that the bottom and top covers manufactured by them for Usha Ceiling Fans carries the brand name 'Usha'. He submits that this brand name was not affixed by them. The learned consultant states that this brand name is already there when they purchase the casting of bottom and top covers from the market. In these circumstances provisions contained in para-7 of notification No. 175/86 will not be attracted in this case. He also submits that this plea was taken before the lower authorities but they have not dealt with it at all. Shri Kunhikrishnan stales further that the proprietor of the applicant firm is a self employed engineer and is also not in a position to pay the aforesaid amount of duty in view of his poor financial condition. However, no evidence regarding the financial condition has been submitted by the learned consultant.

2. Opposing the stay application Shri Sharma states that in any case it is admitted that the goods are carrying the trade mark 'Usha'. It is not really material for the purpose of attracting para-7 of the said notification that the mark should be affixed by the manufacturer himself who is availing the benefit of the notification, in as much at the lime of clearance of top and bottom covers, the brand name 'Usha' is visible and thus there is an association in the course of trade between the goods and the brand name owner. As regards the financial condition he submits that in the absence of any evidence regarding poor financial condition, he cannot make any comments.

3. We have considered the picas advanced by both the sides. Para-7 of the notification No. 175/86 is very clear which is attracted prima facie only when the small scale manufacturers availing the benefit of the said notification affixes the trade mark in question. Obviously, this has not been done in this case. Prima facie, therefore, we are of the view that the applicants have strong prima facie case. Accordingly, we allow the stay unconditionally.