UNION OF INDIA Vs. PILLAIYAR SODA FACTORY

JUDGEMENT

(1.) THE HON'BLE CHIEF JUSTICE Six writ petitions, W.P. Nos. 12711 to 12716 of 1987 were allowed by a learned Judge, by order dated 29-7-1988 and the order of the Collector of Central Excise, Madurai, in his C. No. V/ID/15/3/82/CX-3 Order No. 66/87 dated 3-11-1987 was quashed. Six writ appeals have been filed by the Union of India and others against the order of the learned single Judge and since common questions of law and fact are involved, the same are being disposed of by this common judgment.

(2.) THE forensic issue involved in these appeals is, whether the six writ petitioners are the manufacturers of an article having a common trade mark. THE context in which the issue arises for our determination is that on 9-11-1982, the Central Excise Preventive Officer, Madurai, visited M/s. Vignesh Soda Factory, Madurai. It was found during the check that aerated waters were being filled, charged with Carbon-dioxide gas under pressure in bottles embossed with the image of "GANESH" and bottles with "GANESH" image imprinted in colour. Some of the bottles had the wordings 'sRI MAPPILLAI VINAYAGAR AERATED WATER INDUSTRY", while others had 'sRI MAPPILLAI SODA FACTORY" and while some others had the labels of 'sRI VIGNESH SODA FACTORY" pasted over the bottles which were being filled up at Sri Vignesh Soda Factory premises. THE Preventive Officer entertained a belief that M/s. Vignesh Soda Factory, along with five other sister concerns situated in different places of Madurai, Dindigul and Trichy, were engaged in the manufacture of aerated waters on behalf of a manufacturer under a common brand name "GANESH" and had cleared them on payment of lower concessional rate of excise duty than the one which, according to the Preventive Officer, was due on the same. Certain documents were consequently seized from M/s. Vignesh Soda Factory under a mahazar drawn on the spot. But, for the purposes of the present case, it is not necessary to take a detailed note of the documents which were so seized. THE writ petitioners, of course, are independent concerns having their separate registrations under the Tamil Nadu General Sales Tax Act and are independent Income-tax assessees. THEy have individual Small Scale Industry Certificates and are different partnership or proprietary concerns engaged in the manufacture and sale of aerated waters. THE Superintendent of Central Excise, on 31-7-1985 issued a common show-cause notice to all the writ petitioners, alleging that they have been using a common trade mark, viz., 'sri Ganesh" and since the total value of the clearance of aerated waters from the six units during the financial year 1981-82 had exceeded Rs. 15, 00, 000/- and they were not eligible to avail of any duty exemption in respect of the clearance made by the respective manufacturing units from 1-3-1982 onwards in terms of Notification No. 31/82 dated 28-2-1982 which had been superseded by Notification No. 148/82-C.E., dated 22-4-1982 and they had, with the intention to evade payment of Central Excise duty, suppressed the fact of using the common brand name. THErefore, the writ petitioners were called upon to show cause as to why a penalty under Rules 9(2), 52-A, 173-Q and 226 of the Central Excise Rules should not be imposed upon the units separately and duty, as specified in the annexure to the show cause notice recovered from each unit in respect of the clearance of aerated waters made therefrom. THE writ petitioners denied the charge of suppressing any fact or using a common trade mark or brand name. It was maintained that the six units did not have any common business or interest and were independent units separately approved by the Sales Tax and Income-tax authorities. It was maintained that the manufacture of aerated waters attributed to the units could not be said to be the production or manufacture on behalf of one and the same manufacturer. THE use of a common trade mark or brand name was denied. THE writ petitioners claimed that they were entitled to individual exemption from duty in pursuance of the Notification No. 148/82-C.E., dated 22-4-1982. THE Collector of Central Excise, Madurai, by order dated 3-11-1987, held that the production of aerated waters in the six different units could not be said to be the production of one manufacturer. He, however, held that the usage of identical trade mark or closely similar brand name disentitled the writ petitioners to the individual exemption under Notification No. 148/82-C.E. and he consequently ordered payment of Central Excise duty of Rs. 6, 86, 134. 36 by the six units and also imposed a penalty of Rs. 40, 000/- on Sri Pillaiyar Soda Factory, Madurai; Rs. 5, 000/- on Sri Mappillai Vinayagar Aerated Water Industry, Dindigul; Rs. 15, 000/- on Sri Mappillai Vinayagar Aerated Water Industry, Madurai; Rs. 25, 000/- on Sri Anaimugan Soda Factory, Madurai; Rs. 50, 000/- on Sri Ganesh Soda Factory, Trichy; and Rs. 30, 000/- on Sri Vignesh Soda Factory, Madurai. Aggrieved by the order of the Collector of Central Excise, the writ petitioners filed the writ petitions in this Court, as noticed above, and the same were resisted by the respondents to the writ petitions.

(3.) THE learned single Judge, after referring to a number of judgments, held that the existence of the alternative remedy was not an absolute bar to the maintainability of the writ petitions and since what was involved was essentially an interpretation of Notification No. 148/82-C.E., dated 22-4-1982, the writ petitions were maintainable. THE learned single Judge noticed that the matter in controversy in the writ petitions did not involve any investigation into disputed questions of fact, but only an interpretation of a statutory notification and, therefore, the writ petitions, which had been filed in 1987 and were pending on the board of the High Court, were maintainable and did not deserve to be dismissed on that ground alone. THE first objection raised on behalf of the respondents to the writ petitions was negatived.