UNION OF INDIA Vs. CIBATUI LIMITED

JUDGEMENT

(1.) These appeals by special leave are directed against the judgment and orders of the Gujarat High Court allowing two writ petitions preferred by the respondent challenging the levy of excise duty. As they raise identical questions of law for consideration they are disposed by a common Judgment.

(2.) The respondent is a company limited by shares. Of the total share capital, 65 per cent is owned by Atul Products Limited, 30 per cent belongs to a foreign company known as Ciba Geigy of Baste Switzerland and the remaining 5 per cent to Ciba Geigy, of India Limited. the respondent Cibatul Limited (referered to shortly as the "seller") entered into an agreement with Ciba Geigy of India Limited (the "buyer") on March 24,1971 under which certain specified products, which included U.F. Resins and M. F. Resins, were to be manufactured by the seller in accordance with a manufacturing programme drawn up jointly by the seller and the buyer. The resins were to be manufactured in accordance with the restrictions and specifications constituting the buyer's standard, and they were supplied at prices agreed upon between the seller and the buyer from time to time. The buyer was entitled to test a sample of each batch of these goods, and it was only after it had given its approval that the goods were to be released for sale to the buyer. Another agreement between the two took place on June 1, 1975 in respect of Epoxy Resins and the terms of the agreement were similar to the terms of the earlier agreement. It was understood that the products manufactured under the two agreements would bear certain trade marks which were the property of the foreign company, Ciba Geigy of Basle. In this connection, on December 7, 1971 a tripartite agreement was executed between the buyer, the seller and the foreign company in respect of four trade-marks, Aerolite, Melocol, Melolam and Resicart The foreign company, which owned these trade-marks, as well as the seller recognised the buyer as the registered or licensed user thereof. The buyer authorised the seller to affix the said trade-marks on the products manufactured under the first contract, and the seller was to do so "as an agent for and on behalf of the buyer and not on his own account". The seller had also agreed to refrain from selling or dealing in, directly or indirectly, goods bearing the said trade-marks or any other marks similar thereto save and except for the explicit purpose of fulfilling the seller's obligations under the first agreement, The buyer reserved the right to revoke the authority given to the seller to affix the trademark. A similar tripartite agreement was executed between the three parties on, December 1, 1973 in respect of the second agreement between the buyers and the seller, namely, that relating to Epoxy Resins. The trade-mark concerned was Araldite.

(3.) The respondent filed a declaration for the purposes of the levy of excise under the Central Excises and Salt Act, 1944 showing the wholesale price of different classes of goods sold by it during the period May, 1972 to May, 1975. The declaration included the wholesale prices of the different resins manufactured under the two aforesaid agreements. The Assistant Collector of Customs revised those prices upwards on the basis that the wholesale price should be the price for which the buyer sold the product in the market. The Assistant Collector proceeded on the footing that the buyer was the manufacturer of the goods and not the seller. The respondent appealed to the Collector of Central Excise. The appeals were allowed by the Collector, and he accepted the plea that the wholesale price disclosed by the seller was the proper basis for determining the excise duty. The appellate orders were, however, revised by the Central Government under sub-s. (2) of S. 36 of the Act, and the orders made by the Assistant Collector were restored. The respondent filed a writ petition in the Gujarat High Court against the orders of the Central Government, and the High Court held that the Central Government was wrong and the appellate Collector was right on the question as to the liability of the seller to excise duty.