TMI Blog1988 (7) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) (6) 1. 12711 Sri Pillaiyar Soda Factory, Madurai Proprietary Vetrivel 1-4-1982 2. 12712 Mappillai Vinayagar Aerated Water In- dustry, Dindigul Partnership 1.G.Thangamani 2.Kamakshi 1909 3. 12713 Sri Mappillai Vina yagar Aerated Water Industry, Madurai Partnership 1.Kadirvelu 2.Balamur- uganandam 1909 4. 12714 Sri Anaimugan Soda Factory Proprietary Neethi Mallika 28-11-1982 5. 12715 Sri Ganesh Soda Fac- tory Proprietary K.B.Malini 1-3-1982 6. 12716 Sri Vignesh Soda Fac tory Partnership 1.M.A.Kandasami 2.R.Pappa- thiammal 11-3-1982 The petitioners are independent concerns having their own separate registration under the Tamil Nadu General Sales tax and separate income tax assessments, separate Small Scale Industries Certificate and separate manufacturing places. 3. On 31st July, 1985, the Superintendent of Central Excise, Madurai, issued a common show cause notice to all the petitioners, allegin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 5. The second respondent, Collector of Central Excise, Madurai by his impugned order dated 3.11.1981, held that the production of aerated waters in the six units cannot be said to be the production of one manufacturer but the usage of identical trade marks or closely similar brand names would disentitle them to the exemption under the aforesaid notification and ordered payment of Central Excise duty of Rs. 6,86,134.36 by the six units and imposed a penalty of Rs. 40,000 on Sri Pillaiyar Soda Factory, Madurai - W.P. 12711/87; Rs. 5,000 on Sri Mappillai Vinayagar Aerated Water Industry, Dindigul - W.P. 12712/87; Rs. 15,000 on Sri Mappillai Vinayagar Aerated Water Industry, Madurai - W.P. 12713/87; Rs. 25,000 on Sri Anaimugan Soda Factory, Madurai - W.P. 12714/87; Rs. 50,000 on Sri Ganesh Soda Factory, Trichi - W.P. 12715/87, and Rs. 30,000 on Sri Vignesh Soda Factory, Madurai - W.P. 12716/87. It is to quash these proceedings of the second respondent - Collector of Central Excise, Madurai, the petitioners have filed these writ petitions. 6. The petitions are resisted by the respondents. The Assistant Collector of Central Excise has filed a counter affidavit. It is contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted waters forming part of such clearances, from so much of the duty of excise leviable thereon under the said item as is in excess of seventy five per cent of such duty; (3) (a) 'common trade mark aerated waters' means aerated waters - (i) which are sold under a trade mark, registered under the Trade and Merchandize Marks Act, 1958 (43 of 1958), or not, or under a brand name; and (ii) which are manufactured with the same trade mark or brand name in more than one factory (whether belonging to one or more manufacturers); and (iii) the aggregate value of clearance whereof from all such factories taken together had exceeded Rs. fifteen lakhs during the preceding financial year." 8. The second respondent, Collector of Central Excise, Madurai in his impugned order dated 3.11.1987 has posed for himself the following two questions for determination - (i) Whether the production of aerated waters in respect of the six units charged can be considered to be the production of one manufacturer for and on behalf of the other units which would disentitle the units to claim individual exemptions under Notification No. 31/82, dated 28.2.1982, and subsequently under Notification No. 148/82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the trade mark or brand name 'Sri Mappillai Vinayagar' while the other four units are using the trade mark or brand name of Sri Vignesh, Sri Pilliyar, Sri Ganesh and Sri Anaimugam. The five trade names or brand names which are in vogue are Sri Mappillai Vinayagar, Sri Pillaiyar, Sri Ganesh, Sri Vignesh and Sri Anaimugam. These five trade marks or brand names are not the same and it is not the case of the Collector of Central Excise that they are the same. But, according to him, they are identical with and deceptively similar to one another. 11. The term 'deceptively similar' is defined in Section 2(l)(d) of the Trade and Merchandize Marks Act, 1955 thus - "A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. For deceptive similarity it is not sufficient if there is some sort of resemblance; the resemblance must be such as to be likely to deceive or cause confusion." The first thing to be considered is, whether there is visual or phonetic similarity. Two marks may be calculated to deceive either by appealing to the eye or to the ear or one appealing to the eye and one to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot with 'similar' trade mark or brand name. The use of the same trade mark is different from the use of similar trade mark. The former denotes the very same thing, the exact replica, while the latter denotes likeness in all essential features so as to cause confusion. If the intention of the authorities issuing the notification were to include similar trade mark or brand name, they would have added the words 'or similar' after the word 'same' in clause (ii) above. From the fact that the petitioners are manufacturing and selling under similar trade marks or brand names, however, deceptive they may be, it cannot be said that they are dealing in 'common trade mark aerated waters' and they are not therefore disentitled to the exemption from duty under Notification No. 148/82-C.E., dated 22.4.1982. Evidently the second respondent-Collector of Central Excise has failed to correctly interpret the cope of this explanation and has read into it something which is not there. His decision is based on a patent misconstruction of the aforesaid explanations. It follows that the petitioners, who are manufacturing and selling aerated waters under different trade marks or brand names and the value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this Court under Art. 226 of the Constitution of India and the fact that the respondent should have filed a suit is no bar to this Court granting relief under Art. 226 of the Constitution of India." I respectfully agree with the aforesaid observation of the learned Judge. In Hirday Narain v. Income Tax Officer, Barbilly, AIR 1971 SC 683, the Supreme Court observed "We are unable to hold that because a revision application could have been moved for an order correcting an order of the Income-tax Officer under Sec. 35, but not moved, the High Court would be justified in dismissing as not maintainable the writ petition which was entertained and heard on merits." I hold, therefore, that these writ petitions cannot be dismissed at this stage. 15. Further, I have held that the order of Collector of Central Excise holding that the five trade marks or brand names are deceptively similar is patently unreasonable, and his interpretation of Explanation I to Notification No. 148/82-C.E., dated 22.4.1982 is based on an incorrect interpretation thereof. In such a case, the remedy by way of a writ petition under Art. 226 of the Constitution of India is always maintainable. In Hino Syn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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