IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 C.E.Appeal.No. 11 of 2008 ------------------------------------- FO.NO.110./2008 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... APPELLANT:- ------------------ THE COMMISSIONER, CENTRAL EXCISE, SERVICE TAX & CUSTOMS, COCHIN COMMISSIONERATE, COCHIN. BY ADV. MR.P.PARAMESWARAN NAIR,ASST.S.G., MR.JOHN VARGHESE, S.C. RESPONDENT: ---------------------- M/S V.STAR CREATIONS (P) LTD., LFC ROAD, KALOOR, COCHIN -17. BY MR. CHACKO GEORGE, SENIOR ADVOCATE, ADVS. MR.H.RAMANAN, MR. ALEX N.MATHEW (KOLLAM), MR.JAMES JOSE. THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ C.E.Appeal NO: 11 OF 2008 ----------------------------------------------------------------------------------- Dated this the 5th March, 2009. JUDGMENT RAMACHANDRAN NAIR, J. This appeal is filed against the order of the Tribunal cancelling the demand of Excise Duty in respect of clearance of readymade garments by the respondent assessee for the months of March and April 2001. The commodity enjoyed exemption from excise duty only up to 28.2.2001. Thereafter duty was made applicable to readymade garments sold under registered brand name. While exemption notification 12/2001 was issued with effect from 1.3.2001 there was an exclusion therein whereby duty was payable on goods cleared under registered trade mark. Even though the respondent contended that their application for trade mark registration was pending during that time the department sought to levy duty for the clearance made for the above two months for the reason that registration was granted retrospectively in 2003 with effect from the date of filing of the application which covers the disputed period . 2. The standing counsel appearing for the appellate authority referred to Section 23 of the Trade Marks Act and contended that C.E.Appeal No: 11/2008 2 pendency of the application is sufficient for use of trade mark/trade name and so much so clearance during the pendency of the application are subject to duty. However, senior counsel Mr.Chacko George appearing for the respondent contended 'sale under registered trade mark' are the words used in the Tariff Act as well as in the notification and so much so order to attract duty as on the date of clearance, the goods should have been sold under a registered trade mark. We are in agreement with this contention which was accepted by the Tribunal as well. So much so liability cannot be fastened to the respondent merely because registration was granted retrospectively covering the period of clearances. Further, the Tribunal has relied on the Trade Notice issued by the Madras Commissionerate accepting the position that pendency of the trade mark application is no ground to deny exemption and actual registration is required for charging duty for the clearance of goods in brand name. We therefore dismiss the appeal. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj C.E.Appeal No: 11/2008 3 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: