TMI Blog2011 (12) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority. On 25-9-2001, Central Excise authorities carried out a raid at the said premises. Statement of one Shri Shashikant Jariwala, authorised signatory of the unit was recorded. Panchnamas were drawn. Seizures were made. Statement of Indrajit Bhatia, Director of the company appellant was recorded. Subsequently on the basis of such investigation, a show cause notice was issued on 12-6-2003 raising demand duty of ₹ 39,51,943/- against the appellant. Show cause notice also indicated that authorities proposed to impose penalty. 3. The Adjudicating Authority by his order dated 9-3-2004 confirmed duty demand of ₹ 39.50 lakhs (rounded off). He also imposed penalty of matching amount under Section 11AC of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dave, appearing for the appellants submits that vide a lease deed dated 3-4-2001 the textile processing unit was leased out to one Shri Shashikant Popatlal Jariwala. The findings of clandestine removal of activities are for the period after 3-4-2001. He submits that the entire activities were done by Shri Shashikant Popatlal Jariwala and as such the demand of duty confirmed against M/s. Varun Silk Mills Pvt. Ltd. is neither justified nor warranted. However, on being queried by the Bench as to whether the central excise license to manufacture the fabrics was in the name of M/s. Varun Silk Mills Pvt. Ltd. or in the name of Shri Shashikant Popatlal Jariwala, he fairly agrees that the licence continued to be in the name of M/s. Varun Silk Mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity or before Commissioner (Appeals). In any case we find that central excise license or registration continued to be with M/s. Varun Silk Mills Pvt. Ltd. As such for all intents and purposes M/s. Varun Silk Mills Pvt. Ltd. continued to be the central excise assessee and manufacturer of the goods. Any internal arrangement between Varun and Shri Jariwala, without intimation to the Revenue and without getting the licence cancelled by M/s. Varun Silk Mills Pvt. Ltd. and reissued in the name of Shri Jariwala, M/s. Varun Silk Mills Pvt. Ltd. would remain the manufacturer and hence the central excise assessee. It is not the actual physical manufacturer of the goods which is relevant for the purposes of payment of duty. Inasmuch as Varun continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relied on decision of Calcutta High Court in case of Kumar Jagdish Ch. Sinha v. Collector of Central Excise, Calcutta reported in 2000 (124) E.L.T. 118 (Cal.), wherein contention of the appellant that the duty should be recovered from the lessor and not the lessee was negatived by the High Court. We may however note that the Learned Single Judge recorded that the appellant therein had stated that whatever was produced in the disputed premises during the period of lease was produced by the appellant and not the lessor. It was on this ground that such contention was turned down. 8.1 Reliance was also placed on decision of Bombay High Court in case of Shree Agency v. Assistant Collector C. Ex., Kolhapur reported in 2000 (124) E.L.T. 24 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factum of Shri Jariwala operating the factory as a lessee and not as an authorised signatory of the appellant company. From the record, it emerges that it was the appellant itself who had appointed Shri Jariwala as an authorised signatory of the appellant. So called agreement of lease, if at all existed ought to have been brought on record and established particularly by examining Shri Jariwala as witness. No such attempt was made. In what capacity Shri Jariwala was operating the factory was also not established. In the agreement on which appellant relied, no time limit for giving factory on lease was mentioned. No permission of any authority was taken. License granted to the appellant was neither cancelled nor transferred. 11. The Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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