| the registrar of trade marks appears to have issued registration certificate on 30 6 2000 registering the trade mark meghraj in favour of the appellants with effect form 30 9 91. it appears that issuance of this certificate was mentioned before the cegat which rejected the rectification application. the object of the notification therefore was to help the ssi units and thereby increased industrial production under para 4 of the said notification the benefit of exemption was not available for excisable goods bearing brand name or trade name registered or not of another person explanation ix defined the word brand name or trade name. in the case of pahwa chemicals pvt ltd v commissioner of central excise delhi 2005 189 elt 257 2005 indlaw sc 799sc this court has held that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. these are considerations which are relevant in disputes arising out of infringement passing of actions under the trade marks act. the object of the notification is to grant benefits only to those industries which otherwise do not have the advantage of a brand name. it is clear that grant of registration certificate under the trade marks act will not automatically provide benefit of exemption to the ssi unit. discontinuation of business in respect of a product does not necessarily amount to abandonment. the trade marks act1999 has been enacted to amend and consolidate the law relating to trade marks to provide for registration and better protection of trade marks and for prevention of the use of fraudulent marks. u s 28 of the trade marks act1999registration gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the trade marks act. the registrar trade marks can issue registration certificate u s 28 of the trade marks act with retrospective effect. he effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction can not be extended to the excise law it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m s kay aar biscuits p ltd and where there is evidence of the appellants trading on the reputation of m s kay aar biscuits p ltd which is not rebutted by the appellants assesseeissuance of registration certificate with retrospective effect can not confer the benefit of exemption notification to the assessee. in the case of commissioner of central excise chandigarh v bhalla enterprises 2004 173 elt 225 2004 indlaw sc 996scthis court held that the assessee will not be entitled to the benefit of exemption if it uses on goods in question same similar brand name with intention of indicating a connection with the goods of the assessee and such other person or uses the name in such manner that it would indicate such connection. it was further held that the burden is on the assessee to satisfy the adjudicating authority that there was no such intention. it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction can not be extended to the excise law. it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m s kay aar biscuits p ltd and where there is evidence of the appellants trading on the reputation of m s kay aar biscuits p ltd which is not rebutted by the appellants assesseeissuance of registration certificate with retrospective effect can not confer the benefit of exemption notification to the assessee. issuance of registration certificate with retrospective effect from 30 9 91 will not tantamount to conferment of exemption benefit under the excise law once it is found that the appellants had wrongly used the trade mark of m s kay aar biscuits p ltd. in gaw kan lye v saw kyone saing air 1939 rang 343 fb it was held that registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. according to this provision not only a person should claim to be the proprietor of a trade mark but he should prove that he had used it as such proprietor on his goods. then turning to the label as it stood at the date of the application two names appeared on the label one of kipre and co and the other of the respondent company. if these two names had stood by themselves without any further description of either of them it could be said that both kipre and co and the respondent company were jointly the owners of the mark as well as the owners of the goods to which the label was affixed but that is not the case. the respondent company is described as the sole distributors on the label. the reasonable inference that could be drawn from this description surely is that the goods were the property of kipre and co and so also the mark. if the respondent company was really the proprietor of the mark and also the owner of the goods one would expect some such words as manufactured by kipre and co for brandon and co private ltd. in the absence of any such words a person buying any of these goods on reading the label would naturally believe that what he was buying was the property of kipre and co which was selling its goods under the mark monarch. even distributors and sellers may have marks of their own but then there are ways and ways of indicating on the label itself that the mark embodied therein is the mark belonging to such distributor or seller. obviously therefore on the label as it stood it could not be said that the respondent company was the proprietor of the mark monarch nor could it be said that the mark was used by the respondent company as proprietor thereof. in the case of commissioner of central excise mumbai v bigen industries ltd 2006 197 elt 305 2006 indlaw sc 546 in that matter a show cause notice was issued calling upon the assessee to show cause why the exemption be not denied to the assessee. in para 19 of the show cause notice the authority accepted the existence of a deed of assignment. the facts are entirely different in the present case there is no deed or assignment from m s kay aar biscuits p ltd to the m s meghraj biscuits industries ltd appellants herein. as stated above there is no proof of acquisition on payment or consideration by the appellants to m s kay aar biscuits p ltd. in the present case there is no evidence of assignment or licence from m s kay aar biscuits p ltd to the appellants. in the present case we are concerned with the retrospective effect of the certificate issued by the registrar of trade marks on 30 6 2000 with effect from 30 9 91 ratio of the decision. in the circumstances the judgment of this court in the case of bigen industries 2006 indlaw sc 546 supra has no application ratio of the decision. for the aforestated reasons we do not find any merit in these civil appeals. before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case. |