TMI Blog1984 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1956, and having its registered office at Erasmo Carvalho Street, Margao. They carry on business as manufacturers of soft drinks and they have factory situated at Arlem, Salcete Goa; 2. The first respondent to the petition is Union of India and the second respondent is Assistant Collector of Customs and Central Excise, Goa, having his office at Goa. 3. The petitioners have for the past several years been carrying on the business of bottling soft drinks such as "Gold Spot", "Limca" and "Thums Up" which are marketed under the registered trade mark of a concern known as Parle (Exports) Pvt. Ltd. In this particular petition there is no written franchise agreement. However, in the other connected petitions we find that there is a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to ensure under the agreement and the essence which is purchased from Parle (Exports) as outright trade transactions and the Parle (Exports) has absolutely no control either in the finance or supervision or lobour employed by the petitioners. The petitioners say that the company is at liberty to have its own customers, employees and the entire property in goods which is manufactured by the petitioners absolutely and solely belongs to them. The petitioners say that they are entitled to the profits as well as losses. 6. The cause for the petition arose because the respondent No. 2 while exercising his powers under a notification, exhibit 'B', dated 4-7-1977 had an occasion to consider the relationship of the petitioners with the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer from one or more factories during the any Financial Year subsequent to 1977-78, and for such clearances not exceeding thirty-seven lakh bottles during the period commencing on the 4th day of July 1977 and ending on the 31st day of March 1978." The petitioner-company if it exceeds the target as provided in the notification did not get any exemption. The Collector having found that the petitioner-company was not an independent manufacturer included their product in the quantity of product produced by Parle (Exports). If these products are combined then the petitioner-company becomes liable for levy of duty. 8. As the Collector found that the petitioner-company was liable to pay the duty as it has exceeded the target, he accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgements in support of his contention. The learned counsel relied on two judgements of the High Court. One judgement is of our High Court reported in 1982 E.L.T. at page 142. The question determined by the learned single Judge in his judgement was quite similar to the one with which we are concerned in this case. The agreement in substance before the learned single judge and the agreements which are the subject matter of controversy before us are the same. Their terms are substantially identical. The learned single Judge held that the manufacturers who only purchase essence and produce their own product cannot be said to be agents of the company selling them the essence. The learned single judge also held that this agreement does not invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and permission to use the trade mark are sufficient insignia to show that the Parle (Exports) Pvt. Ltd., has sufficient control over the articles so as to make the petitioner-company liable to account for the detect of the quality and default in respect of sales. 12. We are afraid that tills contention is not well founded. It the petitioner-company has got independent finances and the product is produced by it independently though with the help of the Parle (Exports) Pvt. Ltd., in the absence of any managerial or financial control or liability taken by Parle (Exports) we do not think that the product which is manufactured by the petitioner-company can form part of the products of the Parle (Exports) Pvt. Ltd. It is impossible to treat th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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