G.C. Jain, J.
1. The Judgment will also dispose of Civil Writ Petitions Nos. 387/80 (M/s. Indore Bottling Co. & Ors. vs. Union of India & Ors.), 6 of 1979 (M/s. Tripty Drinks Pvt. Ltd. Jagatpur, Cuttack vs. Union of India & Ors.) 82 of 1979 (Varanasi Bottling Co. Dharia, Varanasi vs. Union of India & Ors.) 83 of 1979 (Varanasi Bottling Co. Dharia, Varanasi vs. Union of India & Ors.) 195/80 (M/s. Amritsar Bottling Co., Amritsar vs. Union of India & Ors.) 197 of 1980 (M/s. Chandigarh Bottling Co., Chandigarh vs. Union of India & Ors.) and 565 of 1980 (Agra Beverages Corporation Ltd. Delhi and Anr. vs. Union of India and Ors.) as the questions of law and facts involved are common in all these cases. We will notice the facts of the present case C.W. 916/78 and need not give the facts of the other petitions because the facts are almost similar.
2. M/s. Poona Bottling Co. Ltd., Petitioner No. 1 in this petition (C.W. 916 of 1978) is a public limited company carrying on, inter alia, the business of manufacturing and bottling of soft drinks i.e. Gold Spot, Limca, Thums up etc. None of its shares was held directly or indirectly, by M/s. Parle (Exports) Pvt. Ltd. (for short 'M/s. Parle') Petitioners No. 2, Ramesh Kumar More, is the Executive Director of Petitioner No. 1 Company. The factory of petitioner No. 1 is duly registered under the Factories Registration Act, 1948. The Petitioner Company has also obtained Central Excise license under the Central Excises and Salt Act, for the purpose of manufacturing the said soft drinks, the petitioner company has installed a bottling plant by an alleged investment of about Rs. 40 lacs. For manufacturing the soft drinks, it has to purchase numerous articles such as bottles, crown corks, sugar, citric acid etc. Besides these, it purchases essences from M/s. Parle under franchise agreements dated July 25, 1977 and February 27, 1978 (Annexure A Colly.) The relevant terms of July 25, 1977 agreement read as under :
'2. The Company hereby permits and authorises the bottler, upon the terms herein contained to bottle, sell and distribute the beverages known as and sold under the trade marks.
Trade Marks Registered Nos.1. GOLD SPOT126.96.36.199.6.7. (hereinafter called 'the said Beverages') within the following described territory (hereinafter called the Territory) Franchise town proper and within a radius of 25 miles of the Town proper. The territory may be extended to other places within a radius of 100 miles by special permission 'in writing, by the company for a period of not exceeding one year, at one time.
(3) the Bottler agrees to deposit with the Company a sum of Indian Rs. 1,00,000/- (Rupees one lac only) or any higher amount in accordance with the territory of the bottle on singing of the Franchise Agreement.
(4) This deposit amount shall be kept by the Company towards the effective and satisfactory fulfillment of the terms and conditions of the agreement of the Franchise. The Company will pay on the deposit amount an interest at the rate of 1 1/2% over the Bank Rate prevailing on the 1st day of January of each preceeding calendar year.
(5) The company will sell to the Bottler and the Bottler will buy from the company essence for the beverages at the prevailing prices. All bottles and crowns purchased by the Bottler will be notified by the Bottler to the company every quarter. No essence, crowns of finished merchandise will be sold, loaned or delivered to any other Bottler without written permission of the company and the Bottler shall not directly or indirectly sell or distribute the said Beverages in any territory other than that assigned to the Bottler.
(6) The said Beverages will be manufactured in a plant approved by the company, and located within the above described territory. Beverages will be manufactured only according to formula provided by the company in accordance with the Local and National Laws of the Bottler's country. Samples of finished Beverages will be sent at Bottler's expenses to the company every month.
(7) The Bottler will keep complete records of all Chemical tests made as specified by the company, and of production, sale and distribution of the beverages and will furnish the company with such reports monthly.
8(a) Cases, cartons, bottles and crowns used for the Beverages will be of a type, style and design approved by the company. No non-standard cases, cartons, bottles or crowns.............will be used, except with the written permission of the company. Delivery trucks will be decorated in standard colours and according to approved designs. Emblem of Trade Marks should be exhibited prominently on the premises of the factory and office......
* * * * * 9(b) Not at any time to manufacture, bottle, sell and deal in or otherwise be concerned with any product under any trade mark or other designation which is an initiation or infringement of the Trade Marks or is likely to cause passing off or any product which is calculated to lead the public to believe that it originates with the company because of the Bottler's association with the business of bottling, distributing and selling Beverages without in any way limiting the generality of the foregoing, it is hereby expressly understood and stipulated that use of the said Trade Mark in any form or fashion, or any word graphically or phonetically similar thereto or in limitation thereof on any product other than that of the Company would constitute an infringement of the trade mark or be likely to cause passing off;
(c) During the continuance of this Agreement and for a period of two years thereafter not to manufacture, bottle, sell, deal in or otherwise be concerned with (i) any Beverage put out under the said Trade Mark (whether alone or in conjunction with any other word or words) or any phonetic rendering of such a word, or (ii) any Beverage whether put out under the said Trade Marks or otherwise which is an imitation of the essence, syrup, or beverages or is likely to be substituted thereof.
(10) Advertisement and promotion material offered or recommended by the company will be purchased and used according to plans discussed and agreed upon from time to time. All other advertising and promotion material must be approved by the company before its use by the Bottler. Adequate records of purchase and use of advertising will be maintained and reports will be sent to the company at regular monthly intervals. Such records will be made readily available to authorised employees of the company at the time of their visits at Bottler's place of business. It is desirable to have the advertisements uniform throughout.
(11) The Bottler will not sell the beverages to retailers in the Territory at prices higher than agreed to with the company in writing. The company's prior approval in writing must be obtained for any increase in price. The Bottler shall always charge a deposit for bottles and crates. The company's prior approval in writing must be obtained for any change in the deposit rate.
(12) The Bottler will push vigorously and use the Bottler's best efforts to promote and solicit the sale of said beverages, will secure full distribution of the said beverages in the Territory. If in the opinion of the company the Bottler is not effectively selling the products beverages in the said manner or system to the entire satisfaction of the company, the company shall have right to take over, selling, distributing partially or fully.
(13) Whenever, after the date of this appointment, the demand for the beverages in the Territory shall in the opinion of the company, warrant one or more additional bottling plants, the company has the right to franchise such additional plants to anyone in the above territory.
(14) The decision of the company on all matters concerning said Trade Marks shall be final and conclusive and not subject to question by the Bottler. The company will protect and defend above Trade Marks at its sole cost and expenses. The Bottler will co-operate fully with the company in the defense and protection of the said Trade Marks and use in the territory infringing the company's Trade Marks.
(15) The Bottler recognises the company's ownership of the said Trade Marks and will only use said Trade Marks in the manner lawfully permitted and will not take any action which will prejudice or harm the above Trade Marks or the company's ownership thereof in any way. No contracts will be made with sub-bottlers, agents, or distributors, or anyone having to do with the bottling or wholesale selling of products under the company's Trade Marks without the written permission of the company.
(16) The Bottler will sell and distribute said beverages under company's Trade Marks and strictly on its own merits and make only such representation concerning said beverages as shall have been previously authorised in writing by the company. The bottler will not use 'the company's Trade Marks' as part of its name or any other drinks which are deceptively similar or can be confused with the beverages, nor will the bottler use in connection with any drink any Trade Marks or design which is deceptively similar to company's Trade Marks or any other Trade Marks which the company may acquire.
* * * * * * (19) Nothing in this appointment shall create or be deemed to create any relationship of agency, partnership or joint venture between the Bottler and of the company. The Bottler will assume full responsibility or liability for, and will hold the company harmless from any loss, injury or damages resulting from or claimed to result from acts of commissions or omissions on the part of the Bottler.
(20) this appointment or part thereof, interest therein, shall not be sold, assigned, transferred, pledged, mortgaged, leased, licensed or in any other way or manner encumbered or disposed of in whole or in part, nor shall it pass by operation of law or in any other manner without the company's prior written consent. The company's right to withhold its consent shall be absolute and unqualified.
(21)(c) The discontinuance of the bottling of the beverages by the Bottler for any reason whatsoever, for a period of thirty (30) consecutive days excepting only as provided in clause 25 hereof'.'
3. The second agreement dated February 27, 1978 contains similar terms.
4. Section 2(d) of the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act') defines 'excisable goods' as those specified in the First Schedule which are subject to a duty of excise and includes Salt. Section 3 of the Act provides for the levy and collection of duty on goods specified in the First Schedule. Item 1D of the First Schedule provides a duty of twenty-five per cent ad valorem on aerated water which are only charged with carbon dioxide under pressure and which contain no other added ingredient. On all other aerated waters whether or not flavoured or sweetened and whether or not containing vegetable or fruit juices or fruit pulp a duty of fifty-five per cent ad valorem is provided for. The Central Government by Notification No. 211/77, dated July 4, 1977 (Annexure 'C') exempted aerated waters not containing extracts to Cola (Kola) nuts and falling under sub-item (2) of Item 1D of the First Schedule to the Act thereon from such duty as is in excess of twenty-five per cent ad valorem. This exemption, according to the proviso, was to apply to the first clearance for home consumption not exceeding fifty lakh bottles, by or on behalf of a manufacturer from one or more factories during any financial year subsequent to 1977-78 and for such clearances not exceeding thirty-seven lakh bottles during the period commencing on July 4, 1977 and ending on March 31, 1978. Accordingly, the petitioner company cleared the production up to thirty-seven lakh bottles during the above-mentioned period at the reduced rate of duty of twenty-five per cent ad valorem. Under the Notification (Annexure 'C') the petitioner during the year 1977-78 were allegedly entitled to clear bottles of aerated waters at the lower rate of duty of twenty-five per cent up to clearances of fifty lakh bottles of aerated waters.
5. Some doubt appeared in the mind of the Central Government as to whether because of the franchise agreement between the petitioner company and M/s. Parle, the petitioner company, would be deemed to have been manufacturing the drinks for and on behalf of M/s. Parle. The matter was referred to the Ministry of Law, Justice and Company Affairs, New Delhi, for its opinion. The said Ministry examined the matter and rendered an opinion that M/s. Parle could be treated as the manufacturer within the meaning of Section 2(f) of the Act (copy of the opinion is Annexure 'D'). The opinion of the Ministry of Law was communicated to various Collectors with an advise to examine the issue. The Assistant Collector of Central Excise, Pune, served a notice dated May 30/31, 1978, on the petitioner company informing it that on examining the various conditions with regard to buying of compositions for the preparations of syrup and the preparations of the bottling of beverages, i.e. Gold Spot, Thums-up, Limca, Rimzim determination of out-put, territorial restrictions as to the sales of the beverages, obligations to accept standards as to equipment and material, control over maximum retail price and expiration or termination of the contracts etc. the petitioner company was not an independent manufacturer but was manufacturing out-puts and drinks for and on behalf of M/s. Parle and consequently did not appear to be entitled to avail of the exemption under the abovementioned Notification dated July 4, 1977. The petitioner company was required to show cause why full rate of duty should not be charged on the said products and why the differential duty on the post clearance should not be recovered from them. Pending final disposal, the petitioner company was required to file a fresh classification list and to pay Central Excise duty at full rate. The petitioner company filed an interim reply, dated May 30, 1978 (Annexure 'F') and a detailed reply dated July 21, 1978. The Superintendent of Central Excise, however, vide letter No. V(ii)78/226 (copy Annexure 'H') required the petitioner to re-submit the classification list and to clear the aerated waters on payment of fifty five per cent ad valorem duty plus five per cent of the basic duty on all clearances without availing the concession granted under the Notification of July, 1977.
6. Feeling aggrieved, the petitioners have filed the above Writ Petitions. Their claim is that the show cause notice had been issued in pursuance of the directions issued by the Central Government whereby the opinion of the Ministry of Law & Justice was conveyed. The show cause notice issued in pursuance of the said directions and the threat to implement the said directions were illegal and without jurisdiction, inasmuch as the petitioner company had their own plant for bottling aerated waters, it purchased essences from M/s. Parle for a price on principal to principal basis and paid sales-tax on the said purchases. The petitioner company purchased various other articles. It had obtained independent release orders as actual users for importing citric acid. All the employees employed in the bottling plant were the employees of the petitioner companies. M/s. Parle were only concerned with quality control of the product manufactured by the petitioner companies in view of their permission to use their trade name on the bottles of aerated waters manufactured by the petitioner companies. All sales were directly made by the petitioner company and in such circumstances the petitioner company was the manufacturer and it could not be urged that it was manufacturing the soft drinks for and on behalf of M/s. Parle. Special attention was pointed out towards clause 19 of the franchise agreement which specifically provided that the said agreement shall not create or be deemed to create any relationship of agency, partnership or joint venture between the petitioner company and M/s. Parle. The decision of the Central Government, it was pleaded, was in complete violation of the principles of natural justice in as much as no opportunity of hearing was given. Respondent No. 3, who issued the show cause notice dated May 30/31, 1978 (Annexure 'E') had prejudged the matter and that the respondents 3 and 4 had no jurisdiction or authority to direct the petitioner to re-submit the classification list. It was also averred that in case M/s. Parle was the manufacturer, duty was payable by the manufacturer and not by the petitioner company.
7. On these allegations the petitioner company claims the issue of a writ of certiorari or any other writ, order or direction calling for the records of the case and to quash and set aside the decisions/instructions and directions contained in the letter of respondent No. 1 dated April 14, 1978, to quash notice dated May 30/31, 1978 issued by respondent No. 3 pursuant to aforesaid directions and to quash the letter dated July 1, 1978 issued by respondent No. 4 denying the exemption to clear aerated water bottles in the petitioner company's plant at a concessional rate. They also prayed for a writ of mandamus or any other writ, order or direction in the nature thereof directing respondent 1 to cancel and/or withdraw the decision/instructions and directions contained in the aforesaid letter dated April 14, 1978 and to direct respondents 3 and 4 to cancel and/or withdraw the aforesaid letters dated May 30/31, 1978 and July 1, 1978 and to direct the said respondents to permit the petitioner to enjoy the benefit of concessional duty as contemplated in Notification No. 211/77, dated July 4, 1977 and not require the petitioner company to re-submit a classification list; a writ of prohibition or any other writ, order or direction in the nature thereof restraining respondents 3 and 4 from interfering with the clearances of aerated water bottled by the petitioner company at a concessional rate of duty at the rate of 25 per cent in terms of the aforesaid Notification No. 211/77 and to restrain the said respondents from recovering higher excise duty in respect thereof for the clearances effected during 1977-78 and thereafter.
In Civil Writ Nos. 82 and 83 of 1979, 195, 197, 387 and 565/1980 also the franchise agreement is with M/s. Modern Bakeries (I) Ltd. in respect of soft drinks known as '77'. The terms are similar.
8. Shri Y. P. Watre, Assistant Collector, Central Excise, Pune Division II, Pune, has filed an affidavit on behalf of the respondent in this Writ Petition (No. 916 of 1978). The respondents have raised a preliminary objection that the petitioner was premature in as much as only a show cause notice had been given. The decision was yet to be made by the concerned authorities. In case the decision was against the petitioners, remedies of appeal and revision were available and only after the decision of revision the petitioners could file a writ petition, if so advised. The contention of the petitioners that they could not get any relief from the Excise authorities was only a conjecture and presumption. The interpretation given by the Law Ministry was not binding on the quasi-judicial authorities who were required to examine the subject-matter on the basis of the record before them independently. On merits, the plea raised was that after examining the franchise agreements notice was served to show cause whether the manufacturing operations conducted by the petitioners in terms of the franchise agreement between them and M/s. Parle could be held to mean manufacture by themselves or for and on behalf of M/s. Parle as defined under the Central Excises and Salt Act, 1944. The terms of the franchise agreement made it clear that the petitioners had been bound for a period to conduct their manufacturing operations, marketing and their liabilities as to the emblem and trade marks in the terms of the franchise agreement and were further required to deposit with M/s. Parle a sizeable amount to be determined by M/s. Parle towards the effective and satisfactory fulfillment of the terms and conditions of the agreement.
9. On behalf of the respondents two preliminary objections have been raised, namely (i) that this court has no territorial jurisdiction to try these petitions; and (ii) that these petitions were premature. In our opinion, none of these objections has any substance. It is correct that in none of these petitions has any substance. It is correct that in none of these petitions show cause notice was issued by the authorities at Delhi. However, it cannot be denied that all the show cause notices were issued in pursuance of directions sent by the Central Government vide their letter dated April 14, 1978. In the said letter it was mentioned that the question whether the various bottling companies having franchise agreement with M/s. Parle are to be treated as independent manufacturer has been examined in detail in consultation with the Ministry of Law, Justice and Company Affairs and that according to the advice and opinion given by the said Ministry the aforesaid bottling companies could not be treated as independent manufacturers. Thus we have no doubt that the basis of the show cause notice is the direction or advice issued by the Central Government. The respondents in their counter affidavit have stated that these were no directions and that the Government simply asked them to examine the issue in terms of the opinion of the Ministry of Law, Justice & Company Affairs. In our view, the advice coming from the Central Government for all purposes amounted to directions. This so called advice was just like the advice coming from the king. This is apparent from the immediate action taken by practically all the Assistant Collectors in issuing show cause notices to all the Bottling Companies concerned. The tenor of the show cause notice in this petitions shows as if a decision has already been taken. In such circumstances we are satisfied that the impugned show cause notices were issued in pursuance of the directions given by the Central Government and, thereforee, this court has territorial jurisdiction.
10. It is correct that the petitioners have approached this court soon after the receipt of the show cause notices and they have not waited for the decision of the Assistant Collectors in this behalf. It is also true that under the relevant Act they had a right of appeal and revision. It is also a settled law that in appropriate cases the High Court may refuse to grant relief under Article 226 of the Constitution of India where there exists an alternative remedy, equally efficacious and adequate. However, the existence of an alternative remedy is not an absolute bar to the grant of relief under Article 226. It is just a circumstance which the court has to take into consideration in exercising its discretionary power under Article 226. This court would definitely grant relief under this Article if there is total lack of jurisdiction or complete non-application of mind. In our view, in the present cases there is total non-application of mind and, thereforee, these are fit cases for granting of discretionary relief under Article 226 of the Constitution of India even though the remedies under the Act have not been exhausted.
11. On merits, the short question for consideration is whether the petitioners were manufacturer of soft drinks for and on behalf of M/s. Parle/Modern Bakeries with whom they had entered into franchise agreements. The petitioners would be deemed to be manufacturing the soft drinks for and on behalf of M/s. Parle and/or Modern Bakeries only in two contingencies, namely (a) when they are employees of the said companies or (b) their agents. The petitioners are admittedly not the employees of M/s. Parle and/or Modern Bakeries. They are independent persons. They have installed their own machinery, they employ their own labour, the investment made belongs to them, they sell the soft drinks manufactured to their own customers though in a particular area. In such circumstances they cannot be termed as servants by any stretch of argument. The mere fact that they were using trade mark of M/s. Parle or that M/s. Parle had control over the quality and also had right of inspection and control over price, will not make the petitioners their servants.
12. Agent is defined in section 182 of the Contract Act, as 'a person employed to do any act for another or to represent another in dealings with third persons.' Agency is a relationship that exists between two persons when one called 'the agent' is considered in law to represent the other, called the 'principal' in such a way as to be able to affect the principal's legal position in respect of strangers to the relationship by the making of contracts or the disposition of property. The petitioners under the agreement have no such right to represent M/s. Parle and/or Modern Bakeries so as to affect their legal position in respect of strangers. thereforee, they cannot be termed as agents. In all these circumstances, in our considered view, it cannot be said that the petitioners were manufacturing the soft drinks for and on behalf of M/s. Parle and/or Modern Bakeries.
13. Can it be said, in view of the terms of the franchise agreements, that the petitioners were not the manufacturers of the soft drinks and M/s. Parle and/or Modern Bakeries were the real manufacturers Under the franchise agreement various restrictions have been imposed on the petitioner companies while buying the essence for the beverages for manufacturing soft drinks such as approval of the plants by M/s. Parle, maintenance of the records of Chemicals tests, sale and distribution of beverage in particular area, types of bottles or crowns to be used, control over retail sale price, company's right of inspection, etc. All these terms relate to the safeguard of trade mark interests. In our view, these restrictions do not lead to the conclusion that the petitioners were manufacturing soft drinks for and on behalf of M/s. Parle or Modern Bakeries. The entire manufacturing activities are being carried on by the petitioners themselves. The soft drinks known as 'Gold Spot', Limca, Thums-Up, Rimzim, '77' have acquired a specific popularity in the country. These are valuable trade marks and all the abovementioned terms are to safeguard the interests regarding trade marks. It cannot be said that the petitioners were not the manufacturers or that they were manufacturing the soft drinks on behalf of M/s. Parle or Modern Bakeries. As a matter of fact, the Government itself has taken a similar view in reg. Surat Bottling Co. Ltd. 1980 ELT 353, (Order-in-Review No. 404 of 1980 dated 15-4-1980). There is one other aspect which we may mention. Under the Act the Excise duty is payable on manufacture by the manufacturer. If M/s. Parle are the manufacturer and its total manufacture is to be considered to deciding whether the exemption of 25% of duty can be claimed, the notice had to be issued to M/s. Parle and not the petitioners. It is a contradiction to issue the show cause notice and claim duty from petitioners and at the same time issue notice to M/s. Parle. This shows complete non-application of mind.
14. We consequently hold that the impugned directions issued by the Central Government and show cause notices issued in pursuance thereof are illegal and without jurisdiction.
15. Before concluding, we would also like to mention that in Writ Petition Nos. 82 and 83 of 1979 (Varanasi Bottling Co. vs. Union of India & Ors.), the Writ Petitions have also raised the plea that the demands were barred by time. However, we need not go into this question because of the view earlier taken regarding the validity of the notices.
16. We, thereforee, make the rule absolute and quash the directions issued by the Central Government and the impugned show cause notices issued by the Assistant Collectors of Central Excise to the petitioner companies. No costs.