TMI Blog1984 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 5. The agreement entered into by and between the petitioner and respondent No. 5 is annexure 1 to the writ petition. According to the order dated 18th September, 1978 of respondent No. 2 contained in annexure 7, as the petitioner was manufacturing "77" for and on behalf of respondent No. 5, it was not entitled to exemption issued under rule 8(1) of the Central Excise Rules, 1944 (the Rules) on 4th July, 1977 copy of the notification issued under that rule is annexure 2. 2. In this application, the petitioner has prayed for issuance of appropriate writ for quashing annexure 7 on the ground that in terms of annexure 1, the petitioner was itself a manufacturer of soft drink "77" and was not manufacturing it for and on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner or its factory at Adityapur. Since respondent No. 5 allowed the petitioner to use the trade mark "77" owned by respondent No. 5 the latter was entitled to ensure the quality of the soft drink. In annexure 1 the territory within which the petitioner was entitled to sell "77" so manufactured in its Adityapur factory, was defined. According to the petitioner it was a manufacturer as defined under the Central Excises and Salt Act, 1944 (the Act). Respondents Nos. 1 to 3 in their counter-affidavit admitted that the soft drink "77" was manufactured by the petitioner at the Adityapur factory, but contended that the same was manufactured on behalf of respondent No. 5. The terms of annexure 1 would show that the petitioner was manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication dated 4th July, 1977. It read as follows : "Notification No. 211/77-C.F., dated July 4, 1977, reading as follows : 'In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts aerated waters not containing extracts of cola (kola) nuts, and falling under sub-item (2) of item No. 1D of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon as is in excess of twenty-five per cent ad valorem : Provided that the exemption contained in this notification shall apply only to the first clearances for home consumption not exceeding fifty lakh bottles, by or on behalf of a manufacturer from on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or lend, sample, gift or otherwise dispose of the composition/syrup inside or outside of his territory without the prior written consent of the company......... (e) It is an express condition of this agreement that the bottler will not sell or resell the beverage outside of his territory without the prior written consent of the company. 2. The company undertakes to sell and deliver to the bottler for distination such quantities of the composition as may be specified by the bottler. The company will ensure the quality of the composition to be supplied to the bottler in conformity with the food laws. 3. (a) The bottler will use the composition thus purchased from the company exclusively for preparation of the syrup and the preparati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he beverage on behalf of respondent No. 5. 9. Mr. Ghosh, learned Counsel appearing on behalf of the petitioner, urged that on the grounds relied upon by Mr. Prasad, the petitioner did not become an agent of respondent No. 5. He submitted that the composition which was one of the ingredients for the manufacture of beverage was outright purchase by the petitioner from respondent No. 5, and at no point of time or at no stage of the manufacture of the beverage, respondent No. 5 had any control. 10. From the terms and conditions quoted hereinabove, it is clear that the composition was purchased by the petitioner from respondent No. 5. Admittedly "77" was registered trade mark of respondent No. 5 and it allowed the petitioner to use the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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