Per C.N.B. Nair : The issue raised in this appeal is the eligibility of the appellants for small scale exemption under Notification Nos. 175/86 and 1/93 in view of the use of the trade name/brand name "Lovejoy" on their products. It is not in dispute that manufacturers affixing the brand name of another person on their products are excluded from the benefit of small scale exemption under these notifications. The impugned order denying the small scale exemption has been passed on the basis that the brand name "Lovejoy" belonged to M/s. Lovejoy Inc. USA.

2. The appellants have submitted that the finding reached in the impugned order is not maintainable in the facts of the case. Further, it is erroneous in law. The submission of the appellant is that the brand name Lovejoy belonged to the appellants themselves and it had been registered in their favour as early as 1976 under Trade and Merchandise Marks Act 1958. During the hearing of the case our attention was specifically drawn in this connection to certificate of registration of Trade Mark No. 3210138 dated 10.12.76 issued in favour of the appellants. The appellants have pointed out that the registration by the appropriate authority sets at rest all doubts about the ownership of the brand name in India. The appellant also pointed out that the foreign company themselves have raised no claim regarding their ownership of this brand name in respect of India. In fact, the impugned order itself had noted this position in paragraph 6.1 where in it has been observed that the trade name Lovejoy belong to the Indian party in respect of India. With regard to the legal position, the appellants submission is that the Hon'ble Calcutta High Court has held in the case of Collector of Central Excise Calcutta-I Vs. ESBI Transmissions Private Ltd., 1997 (91) ELT 292 that if a brand name belongs to a Foreign company but is registered in India in the name of an Indian party, the trade name will be that of the Indian party in India and that party has the exclusive right for using that brand name and that the bar relating to the use of brand name of another person contained in Notification No. 175/86 is not attracted to such cases. Para 8 to 10 of Calcutta High Court judgment has been specifically relied upon by the learned Counsel for the appellant during the hearing of the case. During the hearing of the case, the learned Counsel also pointed out that this legal position laid down by the Calcutta High Court was followed by the Tribunal in the case of Convertech Equipment Pvt. Ltd. Vs. CCE, Meerut, 2001 (45) RLT 984 (CEGAT)=2001 (137) ELT 144, Rajdoot Paints Ltd. Vs. Collector of Central Excise, New Delhi, 2001 (42) RLT 997 (CEGAT)=2001 (134) ELT 281 etc.

3. A perusal of the records of the case makes it clear that brand name 'Lovejoy' has been registered in the appellants name by the Trade Marks Authorities. Therefore, the appellant has acquired an exclusive right to the use of the trade name in relation to the goods in respect of which the trade mark is registered. The party is entitled to obtain relief against any person in respect of India in the manner provided by the Trade and Merchandise Act. Therefore, no other person, apart from the appellants, is entitled to use this trade name/brand name in India. There is no question of there being any other person having any right to the trade mark in respect of these goods. That there is a foreign company with the name of 'Lovejoy' is altogether immaterial to the appellants claim towards the trade mark. It is also noted that the foreign company has not raised any claim to the trade mark in India.

4. In the lights of the factual and legal position as noted above, the appeals are allowed after setting aside the impugned order.