JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Vijay Patel for learned advocate Mr. Harshang Patel for the appellant and learned Senior Standing Counsel Ms. Hetvi Sancheti for the respondent. 2. This appeal was admitted by order dated 20.10.2011 which reads as under: “From the order of the Tribunal on record, we notice that the Tribunal has reversed the decision of CIT(Appeals) by briefly noting that “Matter is well settled. Benefit of exemption cannot be granted. We find no merits in the order of CCE(A) in having allowed the benefit of SSI notification .…” Despite such brief reasons, learned counsel for the parties submitted that entire issue is based on legal contentions and matters may not be sent back to the Tribunal for fresh consideration. The Court may examine the issues in this appeal itself. Counsel for the appellant relied on decision of Apex Court in case of Commissioner of Central Excise, Meerut v. Convertech Equipment Pvt. Ltd. reported in 2011(272) E.L.T. 342 (SC), to contend that case of the appellant for exemption was justified. On the other hand, Counsel for the Revenue relied on decision of the Apex Court in case of Meghraj Biscuits Industries ltd. v. Commissioner of C.Ex., U.P. reported in 2007(210) ELT 161 (SC) to contend that even the retrospective grant of registration of trademark would not enable the appellant to seek exemption during the period when no such registration was available. Tax Appeal is admitted for consideration of following substantial question of law: Whether the appellant was not entitled to benefit of exemption notification no. 1 of 1993 by virtue of registration of trademark “fuel cat” granted in its favour on 8.2.2000 with effect from 17.4.1995?” 3. The appellant was manufacturing excisable goods i.e. environmental catalyst and fuel savers which were sold under the brand name of “fuel cat”. The appellant was a small-scale manufacturer and its turnover did not exceed the ceiling prescribed under the Small Scale Exemption Notification No. 01/93-CE and therefore, the appellant was clearing goods manufactured by it under full exemption of duties. The appellant was also exempted from licensing control as per the provisions of the Central Excise Rules. 4. The Central Excise Department initiated inquiry against the appellant on the ground that brand name/trade name “fuel cat” belonged to a company of USA viz. M/s. Flaynik Fuel Conservation Devices Inc. The appellant was also exempted from licensing control as per the provisions of the Central Excise Rules. 4. The Central Excise Department initiated inquiry against the appellant on the ground that brand name/trade name “fuel cat” belonged to a company of USA viz. M/s. Flaynik Fuel Conservation Devices Inc. and since the appellant was using brand name of a foreign company for the goods manufactured, benefit of the Notification No. 01/93-CE was not available to the appellant. 5. A show-cause notice dated 10.01.1996 was issued proposing to deny the exemption to the goods manufactured by the appellant in past with a demand duty of Rs. 4,75,636/- with penalty. Show-cause notice was decided by the Deputy Commissioner of Central Excise-I, Ahmedabad vide OIO No. 152/DC/97-98 dated 25.03.1998 by which, the exemption for the goods manufactured by the appellant was denied and the devices seized by the officers at the time of enquiry were ordered to be confiscated with an option to pay redemption fine of Rs. 57,000/- and duty of Rs. 4,75,636/- was demanded with levy of penalty of Rs. 1 Lakh. 6. The demand for duty of Rs. 4,75,636/- was raised for the goods cleared by the appellant during the period from 20.12.1994 to 13.07.1995. 7. The appellant meanwhile applied for registration of the brand name “fuel cat” under the provisions of the Trademark Act and the application for registration was made in April, 1995 which was allowed by the Deputy Registrar on 20.02.2000 from the date of the application. It is therefore, the case of the appellant that the brand name in question stood registered in the name of the appellant with Trade Marks Registry w.e.f. April, 1995 onwards. 8. Being aggrieved by the Order-in-Original, the appellant preferred an appeal before the Commissioner (Appeals) Ahmedabad which was decided on 28.02.2001 holding that the brand name was the property of the appellant from April,1995 and the duty demanded from April,1995 onwards was set aside and the case was remanded back for adjudication for re-calculating the duty demand. 9. The order passed by the Commissioner (Appeals) was challenged by the respondent-Revenue under section 35B of the CENTRAL EXCISE ACT ,1944 [for short ‘the Act’] before the Customs, Excise and Service Tax Appellate Tribunal, Mumbai [‘CESTAT’ for short] being Appeal No. E/1748/01. 9. The order passed by the Commissioner (Appeals) was challenged by the respondent-Revenue under section 35B of the CENTRAL EXCISE ACT ,1944 [for short ‘the Act’] before the Customs, Excise and Service Tax Appellate Tribunal, Mumbai [‘CESTAT’ for short] being Appeal No. E/1748/01. The CESTAT, by order dated 30.06.2005, allowed the appeal filed by the respondent-Revenue by briefly noting that: “Matter is well settled. Benefit of exemption cannot be granted. We find no merits in the order of CCE(A) in having allowed the benefit of SSI exemption notification on the ground that brand name and the logo was of no one else. The order is set aside and the Revenue’s appeal allowed by restoring the order of the Deputy Commissioner.” 10. Being aggrieved by the aforesaid order, the appellant has preferred this appeal which is admitted on the question of law as reproduced here-in-above. 11. The appellant also preferred Misc. Application to recall the aforesaid order. However, the same was also dismissed by the CESTAT by order dated 22.02.2006. 12. Being aggrieved by the order of the CESTAT rejecting the rectification application, the appellant preferred a writ petition being Special Civil Application No. 23544 of 2006 before this Court which was dismissed by order dated 09.08.2007 on the ground of availability of alternative remedy by preferring an appeal. 13. Learned advocate Mr. Vijay Patel appearing for the appellant submitted that the Tribunal has not passed any order on merits and none of the contentions of the appellant was considered by the Tribunal which were raised before the Commissioner (Appeals). 14. It was further submitted that the impugned order passed by the Tribunal is an ex parte order as the appellant could not remain present on the date of hearing which is explained in the Misc. Application filed by the appellant in detail. It was submitted that however, the Tribunal did not consider the explanation given by the appellant and dismissed the Misc. Application on the ground that there is no error which can be rectified under section 35(C) of the Act. 15. Learned advocate Mr. Patel submitted that the appellant was having a Deed of Assignment of the technology and Clause 20 of such Deed of Assignment clearly stipulates that the appellant can use such trademark to be agreed upon by all parties for fuel conversion devices to be manufactured under knowhow. 16. 15. Learned advocate Mr. Patel submitted that the appellant was having a Deed of Assignment of the technology and Clause 20 of such Deed of Assignment clearly stipulates that the appellant can use such trademark to be agreed upon by all parties for fuel conversion devices to be manufactured under knowhow. 16. It was submitted that the appellant applied for the registration of the trademark in April, 1995 which was granted by the Trade Marks Registry by order dated 20.02.2002 with effect from the date of application. It was therefore, submitted that the Commissioner (Appeals) has rightly allowed the benefit of the Exemption Notification No. 01/93-CE from April 1995 as the appellant was entitled to use the trademark “fuel cat” atleast from April, 1995. 17. It was submitted that reliance placed by the respondents on the decision of the Hon’ble Apex Court in case of Meghraj Biscuits Industries Ltd vs. Commissioner of Central Excise, U.P reported in (2007) 3 SCC 780 cannot be applied to the facts of the case as in the case before the Hon’ble Apex Court, there was no Assignment Deed whereas, in the facts of the present case, there was an Assignment Deed in favour of the appellant which has permitted the appellant to use brand name as agreed between the parties. 18. It was submitted that Hon’ble Apex Court in case of Commissioner of Central Excise, Mumbai vs. Bigen Industries Limited reported in 2006 197 ELT 305 has not interfered in the order passed by the Tribunal considering the fact that the assessee in the said case, was having the Assignment Deed in its favour for the period under consideration and the Tribunal in its order held that Registry of Trade Marks, which is a statutory authority, recognized the assessee as the sole proprietor of the trademark “Bigen” for the territory of India and therefore, the benefit of the notification cannot be denied. 19. It was pointed out that the Revenue has accepted the decision of the Tribunal for the earlier period also and therefore, the Hon’ble Apex Court did not find any infirmity in the order of the Tribunal and dismissed the appeal. 19. It was pointed out that the Revenue has accepted the decision of the Tribunal for the earlier period also and therefore, the Hon’ble Apex Court did not find any infirmity in the order of the Tribunal and dismissed the appeal. It was further submitted that the case of Commissioner of Central Excise, Meerut vs. Convertech Equipment Pvt. Ltd reported in 2011 (272) ELT 342 (SC) also pertains to the issue of benefit of Exemption of Notification No. 01/93-CE to small scale industries and the Hon’ble Apex Court, considering the facts of the case, granted the benefit to the assessee on the basis of the retrospective effect of the registration of trademark. 20. On the other hand, learned advocate Ms. Sancheti for the respondent submitted that the case of the appellant is squarely covered by the decision of the Meghraj Biscuits Industries Ltd. (supra). It was submitted that Hon’ble Apex Court, in the similar facts, has held that the assessee is not entitled to benefit of the Exemption Notification No. 01/93-CE as the condition prescribed in the said notification is to the effect that the benefit of exemption would not be granted to the manufacturer, who uses the trademark of some other person. Reference was made to Clause 7 of the Notification which prohibits the application of the exemption when the small scale industries use to affix their specific goods with brand name or trade name “registered or not” of another person who is not eligible for grant of exemption under the said notification. 21. It was further submitted that admittedly, the appellant was not the owner of the trademark when the impugned show-cause notice was issued for the period from December 1994 to July 1995 as the appellant made the application for registration of the trademark in month of April 1995 which was granted in the Year 2000. 22. It was submitted that the provision of the TRADE MARKS ACT could not be applicable for granting exemption under the Notification No. 01/93-CE as held by the Apex Court in the decision in case of Meghraj Biscuits Industries Ltd. (supra). 23. 22. It was submitted that the provision of the TRADE MARKS ACT could not be applicable for granting exemption under the Notification No. 01/93-CE as held by the Apex Court in the decision in case of Meghraj Biscuits Industries Ltd. (supra). 23. It was further submitted that decision in case of Bigen Industries Limited (supra) is also considered by the Hon’ble Apex Court in the case of Meghraj Biscuits Industries Ltd. (supra) and the same was distinguished on the ground that the show- cause notice was issued upon the assessee to show cause as to why the exemption be not denied to the assessee and as there was a deed of assignment, the Hon’ble Apex Court came to the conclusion that the assessee was entitled to the benefit of Exemption Notification No. 01/93-CE. It was pointed out in the facts of the case there is no Deed of Assignment of trademark which allowed brand name “fuel cat” to be permitted to be used by the appellant and the Clause 20 of the deed of assignment of the knowhow is not specific permitting the appellant to use the brand name “fuel cat” and therefore, it cannot be said that the appellant was owner of the brand name “fuel cat” during the period under consideration or at least from April 1995 in view of the decision of the Hon’ble Apex Court in case of Meghraj Biscuits Industries Ltd. (supra). 24. Having heard learned advocates for the respective parties and considering the facts of the case, it emerges from the record that the appellant entered into a Deed of Assignment of the knowhow which permitted the appellant to use the trademark as agreed between the parties. However, there is no stipulation in such Deed of Assignment for knowhow to permit the appellant to use the trademark/brand name “fuel cat”. 25. The contention of the appellant, which was accepted by the Commissioner (Appeals) to grant benefit of the exemption Notification form the date when the trademark is granted to the appellant with retrospective effect from April 1995, cannot be accepted in view of the decision of the Hon’ble Apex Court in case of Meghraj Biscuits Industries Ltd (supra) wherein, the Hon’ble Apex Court after considering the provisions of the trademark has held as under: “15. Before us it has been urged that M/s. Kay Aar Biscuits (P) Ltd. is non-functional since 1.3.93 and, therefore, in any event appellants were entitled to use the trade mark "Meghraj". This argument is based on the concept of abandonment. We do not find any merit in this argument. Discontinuation of business in respect of a product does not necessarily amount to abandonment. In the present case, there is no evidence from the side of the appellants indicating abandonment of the trade mark by M/s. Kay Aar Biscuits (P) Ltd. Although, Madan Verma, the Director of M/s. Kay Aar Biscuits (P) Ltd., has filed his Affidavit enclosing the registration certificate, he has nowhere stated that M/s. Kay Aar Biscuits (P) Ltd. has abandoned the trade mark. In the circumstances, the Department was right in rejecting the above contention. Abandonment of the trade mark has to be proved by the appellants in the present case. The burden is on the appellants, particularly, when the Department is relying upon the agreement dated 23.11.89 between M/s. Kay Aar Biscuits (P) Ltd. and M/s. Rich Food Products (P) Ltd. 16. Lastly, we are required to examine the retrospective effect of the registration certificate dated 30.6.2000 with effect from 30.9.91. At the outset, we may reiterate 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 under the TRADE MARKS ACT . The object of the exemption Notification No.1/93- CE was to grant benefits to those industries which do not have the advantage of a brand name. However, since retrospective nature of the registration certificate dated 30.6.2000 is repeatedly being raised in this Court we would like to examine the case law in this regard. 17. The TRADE MARKS ACT , 1999 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. 17. The TRADE MARKS ACT , 1999 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. Under Section 28 of the TRADE MARKS ACT , 1999, registration 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 . It is correct to say that the Registrar, Trade Marks, can issue registration certificate under Section 28 of the TRADE MARKS ACT with retrospective effect. The question before us is : what is the effect of issuance of registration certificate with retrospective effect. This question has been decided by the Bombay High Court in the case of Sunder Parmanand Lalwani and Others v. Caltex (India) Ltd. AIR 1969 Bombay 24 in which it has been held vide paras 32' and 38' as follows: "32. A proprietary right in a mark can be obtained in a number of ways. The mark can be originated by a person, or it can be subsequently acquired by him from somebody else. Our Trade Marks law is based on the English Trade Marks law and the English Acts. The first TRADE MARKS ACT in England was passed in 1875. Even prior thereto, it was firmly established in England that a trader acquired a right of property in a distinctive mark merely by using it upon or in connection with goods irrespective of the length of such user and the extent of his trade, and that he was entitled to protect such right of property by appropriate proceedings by way of injunction in a Court of law. Then came the English TRADE MARKS ACT of 1875, which was substituted later by later Acts. The English Acts enabled registration of a new mark not till then used with the like consequences which a distinctive mark had prior to the passing of the Acts. The effect of the relevant provision of the English Acts was that registration of a trade mark would be deemed to be equivalent to public user of such mark. The English Acts enabled registration of a new mark not till then used with the like consequences which a distinctive mark had prior to the passing of the Acts. The effect of the relevant provision of the English Acts was that registration of a trade mark would be deemed to be equivalent to public user of such mark. Prior to the Acts, one could become a proprietor of a trade mark only by user, but after the passing of the Act of 1875, one could become a proprietor either by user or by registering the mark even prior to its user. He could do the latter after complying with the other requirements of the Act, including the filing of a declaration of his intention to use such mark. See observations of Llyod Jacob J. in 1956 RPC 1. In the matter of Vitamins Ltd's Application for Trade Mark at p.12, and particularly the following: "A proprietary right in a mark sought to be registered can be obtained in a number of ways. The mark can be originated by a person or can be acquired, but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which, if questioned, can be substantiated". Law in India under our present Act is similar. 38. A person may become a proprietor of a trade mark in diverse ways. The particular mode of acquisition of proprietorship relied upon by the applicant in this case is of his user for the first time in India in connection with watches and allied goods mentioned by him of the mark "Caltex", which at the material time was a foreign mark belonging to Degoumois & Co. of Switzerland and used by them in respect of watches in Switzerland. Before the Deputy Registrar and before Mr. Justice Shah, proprietorship was claimed on the basis that the applicant was entitled to it as an importer's mark. Several authorities were cited and were considered and principles deduced and relied upon in that behalf. In our opinion, it is not necessary in this case to go into details about facts in the various decided cases dealing with importer's marks. Justice Shah, proprietorship was claimed on the basis that the applicant was entitled to it as an importer's mark. Several authorities were cited and were considered and principles deduced and relied upon in that behalf. In our opinion, it is not necessary in this case to go into details about facts in the various decided cases dealing with importer's marks. In many of those cases, the dispute was between a foreign trader using a foreign mark in a foreign country on goods which were subsequently imported by Indian importers and sold by them in this country under that very mark. In short it was a competition between a foreign trader and the Indian importer for the proprietorship of that mark in this country. We have already reached a conclusion that so far as this country is concerned, Degoumois & Co. have totally disclaimed any interest in the proprietorship of that mark for watches etc. In India, the mark "Caltex" was a totally new mark for watches and allied goods. The applicant was the originator of that mark so far as that class of goods is concerned, and so far as this country is concerned. He in fact used it in respect of watches. There is no evidence that that mark was used by anyone else in this country before the applicant, in connection with that class of goods. Unquestionably, the applicant's user was not large, but that fact makes no difference, because so far as this country is concerned, the mark was a new mark in respect of the class of goods in respect of which the applicant used it. We therefore, hold that the applicant is the proprietor of that mark." [emphasis supplied] 26. The Hon’ble Apex Court thereafter considering the above decision of Bombay High Court in case of Sunder Parmanand Lalwani and ors vs. Caltex (India) Ltd reported in AIR 1969 Bombay 24 agreed with the decision and held 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 and such deeming fiction cannot be extended to the Excise Law as it would be confined to the provisions of the TRADE MARKS ACT . 27. 27. It was further held that the TRADE MARKS ACT merely facilitates the mode of proof and instead of compelling the holder of a trademark in every case to prove his proprietary right, the Act provides a procedure whereby on registration the owner gets certain facilities in mode of proving his title. 28. Applying the principle of Deemed Equivalence, it was observed by the Hon’ble Apex Court in para 20 of the decision that if the SSI Unit wrongly affixes a trademark of another person, be it registered or not, or if it uses the trademark of any eligible person then such default would not be eliminated by the principle of Deemed Equivalence embodied in section 28 of the TRADE MARKS ACT , 1999 as that principle is based on the deeming fiction which fiction is confined only to the provisions of the TRADE MARKS ACT . 29. The Apex Court has also considered the decision of the Bigen Industries Limited (supra) in para 21 as under: “21. Before concluding we may refer to the Judgment of this Court in the case of Commissioner of Central Excise, Mumbai v. Bigen Industries Ltd. 2006 (197) ELT 305 . 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. However, the show cause notice denied the exemption on the ground that Notification No.140/83-CE did not make any distinction between a brand name owned by a person in India or abroad. In the present case, 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. In the circumstances, the judgment of this Court in the case of Bigen Industries (Supra) has no application.” 30. 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. In the circumstances, the judgment of this Court in the case of Bigen Industries (Supra) has no application.” 30. In view of the above dictum of law though the Tribunal has not assigned any reason and in view of the order while admitting the appeal, we are required to consider the applicability of the decisions relied upon by both the sides. Therefore, it would also be germane to the decision in case of Convertech Equipment Pvt. Ltd (supra) which read as under: “ 1. Before the Tribunal, the following two points were raised by the respondent assessee: “1. Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value? 2. Whether affixation of brand name of a foreign company but otherwise registered in the name of the Indian company would disentitle the Indian company, namely, the assessee to the benefit of exemption under SSI Notification No. 1/93?” On the first point, the case has been remanded back to the Commissioner for re-quantification against which the Revenue has no grievance. The findings recorded by the Tribunal on Point 1 is, therefore, affirmed. 2. Point 2 has been decided by the Tribunal against the Revenue relying upon a judgment of the Single Bench of the Calcutta High Court in ESBI Transmissions (P) Ltd. v. CCE [(1997) 91 ELT 47 (Cal)] which was upheld by a Division Bench of that Court in CCE v. ESBI Transmission (P) Ltd. [ (1997) 91 ELT 292 (Cal)] Admittedly, against the judgment of the Calcutta High Court the Revenue did not file any appeal. The same has become final. 3. Since the Revenue did not challenge the judgment of the Calcutta High Court in the aforementioned case, the Revenue cannot be permitted to reagitate the point which is concluded by the aforementioned judgment of the Calcutta High Court in the present appeal. The same has become final. 3. Since the Revenue did not challenge the judgment of the Calcutta High Court in the aforementioned case, the Revenue cannot be permitted to reagitate the point which is concluded by the aforementioned judgment of the Calcutta High Court in the present appeal. This apart, it has been pointed out by the counsel appearing for the respondent which is not controverted by the counsel for the Revenue that the point also stands concluded by a judgment of this Court in CCE v. Primella Sanitary Products [ (2005) 11 SCC 177 : (2005) 184 ELT 125 ] . 4. In view of this, we find no merit in this appeal and dismiss the same leaving the parties to bear their own costs.” 31. The above decision of the Hon’ble Apex Court in case of Convertech Equipment Pvt. Ltd (supra) would not be applicable in the facts of the case as the assignment deed executd by the appellant is only for use of know haw and not the trademark ‘fuel cat’ , hence, the ratio laid down by the Apex Court in case of Meghraj Biscuits Industries Ltd (supra) would be squarely applicable in the facts of the case. 32. We are therefore of the opinion that the appellant was not entitled to the benefit of the Exemption Notification No. 01/93-CE by virtue of the registration of trademark “fuel cat” granted in its favour on 08.02.2000 w.e.f. 17.04.1995. The question is accordingly answered in favour of the revenue and against the appellant assessee. The appeal is accordingly dismissed. No order as to costs.