Per V.K. Agrawal:

In the appeal preferred by Revenue, the issue involved is whether M/s. Bigen Industries are eligible to avail exemption under Notification No. 140/83 dt. 5.5.83 in respect of their product liquid hair colour cleared under brand name "Bigen".

2. Briefly stated the facts are that a show cause notice dated 19.1.90 was issued to the Respondents for denying the exemption under Notification No. 140/ 83 on the ground that the original owner of the brand name was M/s. Hoyu Kabusshiki Kaishe, a Japanese company and the cartons of the products carried the words "formulation of Hoyu Company Ltd., Nagoya, Japan". The Assistant Collector allowed the benefit of notification to the Respondents under order in original dt. 14.10.91 observing that by Deed of Assignment dated 21.9.88, the Trade Mark "Bigen" was given to the Respondents and they were the owner of the brand name; that the trade mark was registered in their name; that by mentioning the alleged words on Cartons, the Respondents wanted to bring to the notice of their customers that the raw material and formula was supplied by M/s. Hoyu Company of Japan. The Assistant Collector also referred to the letter dated 2.3.90 from Deputy Registrar of Trade Mark, indicating "BIGEN" as the exclusive trade mark of the Respondents. The Commissioner (Appeals), in the impugned order dated 21.9.93, upheld the original order observing that the claim that the goods are the formulation of Hoyu Co. cannot by itself operate so as to disentitle the respondents from the benefit of the notification because the use of company's name cannot by itself amount to be brand name. He also relied upon the decision of the Madras High Court in the case of Indo French Pharmaceutical Co. Vs. Union of India reported in 1978 LLT (J. 478). The Commissioner (Appeals) also held that Department's appeal would fail on limitation also as no demands had been issued to the Respondents within six months for the payment of duty.

3. Shri Lakhinder Singh, Id. JCDR, submitted th?t the Respondents are a subsequent proprietor whereas the original proprietor was the Japanese Company, that the Respondents were using the formulation of foreign company and were putting monogram of the Japanese company which is not eligible for exemption under Notification No. 140/83; that another unit at Hubli manufacturing Bigen Hair Dye as per specification given by Hoyu Company had not been allowed the exemption by the department; that the demands were issued periodically as mentioned in para 2 of the order in original which were well within the time limit.

4. Shri V. Sridharan, Ld. Counsel, submitted on behalf of the Respondents that the Trade Mark was registered in the name of the Respondents with effect from 21.9.88 under the Trade and Merchandise Mark Act 1958; that the Trade Mark "Bigen" with a device of a Japanese woman was assigned to them by the Japanese Company under a Deed of Assignment. He further submitted that the Dy. Registrar of Trade Marks under letter dated 8.3.90 informed the Respondents that in view of the assignment dated 21.9.88 Hoyu Kabushiki Kaisha, Japan ceases to be the proprietor of the Registered Trade Mark and as per the records of his office, the Respondents are the sole proprietor of the said Registered Trade Mark and all correspondence like renewal notices, etc., would be issued only to them. The Ld. Counsel relied upon the decision in the case of Opus India Vs. C.C.E. 1992 (62) ELT 447 (T) in which it was held that since the Trade Mark "Hotline" was duly transferred in favour of the appellants by assignment deed and the same was duly registered under Trade and Merchandise Marks Act, there cannot be any dispute about the ownership of the branded goods and there is no justification to deny the benefit of exemption under Notification No. 175/86. He also placed reliance on the decision in the case of CCE, Abmedabad Vs. Vikshara Trading and Investments P. Ltd. 1996 (16) RLT 548 (T) = 1996 (87) ELT 499 (T). Re