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TMI Blog1991 (2) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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. Basically, two objections were raised in resistance of the writ petitions. Firstly, it was argued that without exhausting the statutory remedies available under the Central Excises and Salt Act, 1944, the writ petitioners could not take recourse to filing the writ petitions and, therefore, the writ petitions were liable to be dismissed summarily. The second objection raised was that the writ petitioners had started different factories under different names only with a view to av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up in appeal in all the cases. Mr. Venkatachalamurthy reiterated the two submissions, which had been made before the learned single Judge, before us also. In reply, Mr. Habibullah Badsha, the learned senior counsel appearing for the respondents - writ petitioners, maintained that the findings recorded by the learned single Judge did not call for any interference at all. Learned counsel for the parties referred to some decided cases and we shall deal with the relevant ones at the appropriate place in the course of this judgment. 7. As already noticed, the pivotal question which requires our consideration is, whether the writ petitioners can be said to be manufacturers of an article having the same trade mark or brand name. If the answer to the question is in the affirmative, then, obviously the writ petitioners would not be entitled to individual exemption from duty on the basis of Notification No. 148/82-C.E., dated 22-4-1982, whereas if the answer is in the negative,, they would be so entitled. It would, therefore, be desirable at this stage to notice some of the relevant features of Notification No. 148/82-C.E., dated 22-4-1982, which superseded the earlier Notification No. 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the six units charged can be considered to be the production of one manufacturer for and on behalf of other units which would disentitle the units to claim individual exemptions under Notification No. 31/82, dated 28-2-1982 and subsequently under Notification 148/82 dated 22-4-1982; and (ii) whether the six units have used common trade mark or brand name which would disentitle them the exemption envisaged under the said Notifications." 10. In regard to the first point, the Collector opined that there was no doubt that all the six units are owned by related persons of Shri M.A. Kandasami, the head of the family and that the partners and proprietors of the six units are blood-relatives. He, however, observed that this alone would not disentitle them from availing the exemption if they are otherwise entitled to it. The Collector answered the first question thus : "There is no doubt that all the six units are owned by related persons of Shri M.A. Kandasamy, the head of the family, and the Partners and proprietors in the six units are his blood relatives. But this evidence alone would not disentitle them from availing the disputed exemption. There is no doubt that these six u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y shows that the expression "common trade mark aerated waters" implies aerated waters which are sold under the same trade mark or under the same brand name in more than one factory, whether belonging to one or more manufacturers. Thus, the sale must be with the "same" trade mark or brand name in order to attract the categorisation of "common trade mark aerated waters", for the purpose of the notification. Can the use of a "similar" or "deceptively similar" or "deceptively identical" trade mark used by a manufacturer be said to be the manufacture and sale with the "same" trade mark or brand name ? Notification No. 148/82-CE has used the expression that "common trade mark aerated waters" would mean aerated waters which are manufactured with the "same" trade mark or brand name in more than one factory. The notification does not use the word "similar" or "identical" but "same". The intention of the authorities in issuing the notification is, therefore, quite clear and unambiguous. The concept of "similar" or "deceptively similar", or "more or less identical", is a concept borrowed from the Trade and Merchandise Act or the Copyright Act, which is not of exactitude but of latitude. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. 14. In order to be entitled to the benefit of the individual exemption granted under Notification No. 148/82-C.E., dated 22-4-1982, all that the writ petitioners were required to establish was that they were manufacturing and selling aerated waters, not under the common trade mark and that the value of the individual clearance of aerated waters did not exceed Rs. 7.5 lakhs. Since the Collector clubbed the turnover of all the six writ petitioners, treating them as manufacturing under a common trade mark, he denied to them the benefits of exemption, except to the extent of the first Rs. 15,00,000/-(composite). The Collector construed "same" as "deceptively similar". That was a wrong approach, particularly when there was no evidence or material to hold that one trade mark was used by the manufacturers of different units. The construction placed by the Collector would result in inequitable consequences. On the Collector's own finding, on the basis of the material on record, that the production of aerated waters in six different units by the writ petitioners could not be said to be the production of one manufacturer, the construction placed on the notification by equating "sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the controversy was appropriate and proper. In support of the submission, learned counsel relied upon Hirday Narain v. I.T. Officer, Bareilly (AIR 1971 S.C 33); Ram Shyam Co. v. State of Haryana (AIR 1985 S.C 1147); and Tamil Nadu Betelnut Packers v. Union of India [1986 (25) E.L.T. 649]. 18. At the outset, we would like to observe that the judgments cited by the learned counsel at the Bar support their respective contentions and we need not, therefore, extract any passages from those judgments. The question, however, is, should the existence of alternative remedy inevitably result in the dismissal of writ petitions, where the hearing has taken place on merits. 19. The Courts have, generally speaking, imposed a rule of self-restraint on the exercise of their jurisdiction under Article 226 of the Constitution of India where the party invoking the jurisdiction has an effective and adequate alternative remedy available to it under a statute, more particularly in Fiscal matters. This rule, however, is a rule of convenience and discretion and not a rule of law. At any rate, it does not oust the jurisdiction of the Court to deal with a matter in exercise of the writ jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot affect the jurisdiction of the Court to entertain the writ petitions and, at the time when the writ petitions were filed, the period prescribed for taking recourse to the statutory remedies had not expired, it would have complicated the matters if the writ petitions were rejected at the time of final hearing in 1988, when the time prescribed under the statute for taking recourse to the alternative remedies had expired. Had the writ petitions not been entertained at all the stage of admission on the ground of the existence of alternative remedy, perhaps, the writ petitioners could have moved the authorities under the statute within the prescribed period. But, to non-suit them after so much of time had expired would not have been fair. Technicalities cannot be permitted to defeat the cause of substantial justice. There was no case law available on the question involved in the writ petitions and, therefore, an authoritative pronouncement by the High Court in exercise of the writ jurisdiction was not only appropriate but also desirable. The learned single Judge was conscious of the rule of convenience arising out of the availability of alternative remedies and in the peculiar facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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