GEM FOOTWEAR Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This writ petition is directed against the order dated 25.02.2008 passed by the Customs and Central Excise Settlement Commission (Principal Bench), New Delhi. The petitioner is only aggrieved by the finding recorded by the Settlement Commission in paragraph 20 of the impugned order, which reads as under:

(2.) The counsel for the parties have been heard at length. They agree that the finding with regard to the genuineness of the gift deed/assignment deed made by Sh. Shyam Sunder Sachdeva, who was the owner of the trademark LORIS in favour of his sons Mr. Rakesh Sachdeva and Mr. Ashwani Sachdeva, both partners in the petitioner firm, requires re-consideration. It is clear that a gift deed such as the one referred to in the Settlement Commission s order and a copy of which is placed at page 59 of the paper book does not require compulsory registration. It is also clear that for the purposes of availing exemption under notification No. 8/2003-CE it is not at all necessary that the trademark must be registered. This is so because the expression used in paragraph 4 of the said notification itself is - "whether registered or not". In the present case the gift deed is dated 08.06.2004. It is an admitted position that the trademark LORIS was owned by Sh. Shyam Sunder Sachdeva. It is also clear from the record that he had made an application for registration of the trademark on 21.05.2004 which was ultimately registered on 26.11.2005 as would be evident from the copy of the registration certificate which is annexed as Annexure P-4 at page 57 of the paper book. While it is true that registration of a trademark relates back to the date of the application, on 08.06.2004 (the date of the gift deed) the trademark had not been registered. Consequently, on that date, since the trademark had not been registered, there was no question of applying to the trademark registry for transfer of the trademark consequent upon the assignment. In fact, that is also not necessary in view of paragraph 4 of the said notification. We also note that there is no discussion in the Settlement Commission s order as to whether the assignor (Sh. Shyam Sunder Sachdeva) had disputed the genuineness of the gift deed on record.

(3.) It is in these circumstances that the learned Counsel for the parties are agreed that the question of genuineness of the assignment deed/gift deed whereby the trademark LORIS is said to have been assigned to the partners of the petitioner firm, requires re-consideration. Consequently, we set aside the finding with regard to the genuineness of the assignment deed/gift deed and remit the matter to the Settlement Commission on this limited issue. It shall be open to all the parties to present any further evidence that they may have in support of their claims on this issue. The Settlement Commission shall examine the same and return conclusive findings with regard to the assignment of the trademark to the petitioner. The consequential orders would be made by the Settlement Commission.