PRABIR KUMAR MAJUMDAR, J.

(1) THIS is an appeal from Judgment and Order dated 14-5-1992 passed by the learned Trial Judge on an application under Article 226 of the Constitution, made by the respondents challenging the show-cause notice dated 3-3-1992 as also the letter dated 9-3-1992 issued pursuant to the said show-cause notice which have been impugned in the writ proceedings. The learned Trial Judge allowed the writ application and quashed the show-cause notice dated 3-3-1992 and also the letter dated 9-3-1992 issued pursuant to the said show-cause notice.

(2) THE respondents (hereinafter referred to as the writ petitioner) are the manufacturers of mechanical power transmission equipments including vulkan Diaphragm Couplings (Flexible) (hereinafter referred to as the said product). The writ petitioner is the registered proprietor of the trade mark vulkan duly registered under the Trade and Merchandise Marks Act, 1958, and possesses Registration Certificate No. 357127 dated 4-1-1980 issued by the Registrar of Trade Marks.

(3) THE case of the writ petitioner before the Trial Court was that it had the exclusive right and authority to use the said registered trade mark vulkan in relation to manufacture, sale and supply or distribution of the said product and its spares all over the country. The writ petitioner was a small scale industrial unit and as such was entitled to certain exemption of central excise duty by virtue of a Notification No. 175/86-C. E. , dated 1-3-1986 as amended. The further case of the writ petitioner before the Trial Court was that the writ petitioner was granted necessary Central Excise Licence, bearing No. L-4/24/chapter-8483/r-6/call-1/86 dated 8-8-1986.

(4) SOMETIME in February 1992 various search and seizure proceedings were carried out by the Officials of the Central Excise Department at the writ petitioners factory sites at Taratala Road and Beliaghata Road. Ultimately on 3-3-1992 a notice to show cause was issued to the writ petitioner from the office of the Assistant Collector of Central Excise. The main charge in the said notice to show cause was that the writ petitioners establishment, M/s. ESBI Transmission Private Ltd. , had established themselves as designers and manufacturers in India for producing vulkan Diaphragm Couplings (Flexible) with their own designs and rights for supplying the said couplings in this country and as the said concern of the writ petitioner carried on manufacturing of the specified goods with a brand name or a trade name of another person who was not eligible for the grant of exemption under the Notification, the writ petitioner was also not entitled to any exemption under the said Notification dated 1-3-1986 as amended. The learned Trial Judge found as a fact that there was no dispute that the writ petitioner had availed of the benefits of the said Notification dated 1-3-1986 as amended, from time to time by virtue of the fact that the writ petitioner was a small scale industrial unit and it was allowed the benefit of the exemption extended by that Notification. The learned Trial Judge also found that the writ petitioner had used a brand name of its own, of which it was the registered owner under the Trade and Merchandise Marks Act, 1958, and the writ petitioner was the owner of a registered trade mark vulkan by virtue of the provisions of the Trade and Merchandise Marks Act, 1958, in particular Section 28 thereof. As such the writ petitioner had acquired an exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark was registered. Accordingly, as held by the learned Trial Judge, the writ petitioner was entitled to obtain relief against any person in respect of infringement of the trade mark in the manner provided by the Trade and Merchandise Marks Act, 1958, and, therefore, no other person apart from the writ petitioner was entitled to use that trade mark. It was further found by the learned Trial Judge that so far as India was concerned, the trade mark belonged to the writ petitioner and as the writ petitioner was using its own trade mark in India and not of somebody else, the writ petitioner was entitled to the benefits of exemption offered by the said Notification dated 1-3-1986.

(5) LEARNED Counsel for the appellants has submitted before us that M/s. Vulkan Kupplings are established designers and manufacturers in Germany for vulkan couplings and are selling the same all over the world. Learned Counsel for the appellants has submitted that Paragraph 7 of the Notification No. 175/86-C. E. , dated 1-3-1986 as amended provides that exemption contained in that Notification shall not apply to the specified goods with a brand name or trade name of another person who is not eligible for the grant of exemption under that Notification. It was further been argued by the learned Counsel for the appellants before us that since M/s. Vulkan Kupplings of Germany are not entitled to small scale industries benefits by virtue of being a foreign company, hence benefit of the said Notification dated 1-3-1986 as amended could not available to M/s. ESBI Transmission Private Ltd. , the concern of the writ petitioner, as the writ petitioner was manufacturing and selling the goods of another concern. It is, therefore, the submission of the learned Counsel for the appellants that the said notice to show cause was rightly issued and in terms of Paragraph 7 of the said Notification the writ petitioner is not entitled to any exemption.

(6) LEARNED Counsel for the writ petitioner (the respondents before us) has reiterated the contentions made before the Trial Court. Learned Counsel for the respondents puts emphasis on the fact, first, that the writ petitioner had been enjoying the benefits of exemption from time to time and they are the registered owner of the said trade mark under the Trade and Merchandise Marks Act, 1958. It is submitted on behalf of the respondents that all [of] a sudden the said notice to show cause was issued with the allegation that the writ petitioner was using somebody elses trade mark in India and as such the writ petitioner is not entitled to the benefits of exemption pursuant to the said Notification dated 1-3-1986 as amended.

(7) WE have heard the respective submissions made on behalf of the parties. It is not in dispute, as found by the learned Trial Judge, that the writ petitioner had availed himself of the benefits under the said Notification from time to time by virtue of the fact that the writ petitioner is a small scale industrial unit. It is also not in dispute that the writ petitioner is the owner of the registered trade mark vulkan under the provisions of the Trade and Merchandise Marks Act, 1958, and by virtue of the provisions of Section 28 of the Trade and Merchandise Marks Act, 1958, the writ petitioner has acquired an exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered.

(8) THE relevant paragraph, being paragraph 7, of the Notification No. 175/86-C. E. , dated 1-3-1986 for the purpose of this appeal is as follows :-

"7. The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. "

Therefore, under Paragraph 7 of the said Notification, the exemption contained in the notification shall not apply to the specified goods where the manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption pursuant to the said Notification.

(9) AS stated above, it is not in dispute that the writ petitioner has been using that brand name of its own, of which the writ petitioner is the registered owner. It will also appear that under Section 28 of the Trade and Merchandise Marks Act, 1958, the writ petitioner has acquired an exclusive right in trade mark in relation to the goods in respect of which the trade mark is registered. It is well settled by virtue of such registration, the owner of the registered trade mark is entitled to obtain reliefs against any person in respect of infringement of the trade mark in the manner provided by the Trade and Merchandise Marks Act, 1958. It will also appear under the provisions of the said Trade and Merchandise Marks Act that no other person apart from the registered owner is entitled to use the trade mark.

(10) WE are, therefore, of the view that it cannot be said that the writ petitioner was using the brand name or trade name, registered or otherwise, of some other person. It appears that the writ petitioner was using its own registered brand name or trade name of vulkan and the writ petitioner had acquired the exclusive right to use the trade name vulkan. It will also appear that other manufacturers, including the said German firm, cannot use the trade name vulkan in India without the consent of the writ petitioner. We are, therefore, in agreement with the views taken by the learned Trial Judge in the judgment under appeal. The learned Trial Judge rightly quashed the said notice to show-cause dated 3-3-1992 and also the letter dated 9-3-1992 issued pursuant to the said notice to show cause. We affirm the Judgment and Order dated 14-5-1992 passed by the learned Trial Judge. This appeal is, therefore, dismissed. There will be no order as to costs.