TMI Blog1986 (11) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... Condition No. 4 of the said Notification which the respondents did not satisfy. 3. The Order-in-Original in this matter was passed by the concerned Assistant Collector, who observed that the basic point for decision was whether M/s Mehta Mehta Associates, to whom goods were being sold by the respondents would be considered as an independent buyer and whether the price charged was the sole consideration or not. The Assistant Collector came to the conclusion that the price charged by the respondents from M/s Mehta Mehta was not free and independent price and the contract was not at arm s length on the ground that M/s Mehta Mehta is a partnership trust with total 10 partners..., M/s Minichem is also a partnership firm and there are 11 partners in this firm.... There are two common partners . The Assistant Collector further observed the partners cannot start with another business unless they consult mutually. Since partners are beneficiaries, mutually to both the partnership firms they are acting in concert/conspiracy . The Assistant Collector also concluded that in the context of the afore-mentioned facts, there was no sale at the factory gate to an independent buyer and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the matter may be disposed of in their absence on the basis of records. 8. The learned SDR reiterates what has been stated in the grounds of appeal, that is to say that M/s Minichem India actually manufactured goods on behalf of M/s Mehta Mehta Associates and that, therefore, the prices charged by M/s Mehta Mehta have to be considered for determination of assessable value in terms of Notification 305/77 dated 5-11-1977. In support of this the declaration filed by M/s Mehta Mehta Associates to the Superintendent of Central Excise has been referred to and it is stated that this is also confirmed by M/s Minichem India. Further more, it is urged that since M/s Minichem India are manufacturing goods on behalf of M/s Mehta Mehta Associates, therefore, the two are having mutual relationship in each other s business and in view of this, as per condition No. 4 of Notification No. 120/75 M/s Minichem India cannot be extended the benefit of invoice price option under the Notification. It is further urged that the view taken by the Collector (Appeals) that both the firms have separate legal entities, is of no relevance as the buyer himself is the owner of the goods . It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson or his agent, the period within which such duty can be demanded is extended to 5 years. In the present matter, duty has been demanded after the period of six months and the question remains whether the view taken by the Asstt. Collector that there was a suppression of facts and mis-declaration justifying demand of duty beyond the normal period of six months, is valid in law. The Collector (Appeals) of course, did not consider this issue because he felt that limitation apart the notice to demand duty was not sustainable even on merits. 12. The Show Cause Notice has referred to a declaration dated 2-2-1979 of M/s Minichem India, in which they have opted for payment of duty on the basis of invoice value of their products. The products manufactured by them are referred in this declaration to be Zinc Chloride Solution, Manganese Sulphate Solution and Zinc Sulphate Solution falling under Tariff Item 68 of the Central Excise Tariff. It is stated that while they have opted for this Notification, they contravened Condition No. 4 thereof rendering them ineligible to the benefit of the Notification. On the other hand, there is a separate declaration made by M/s Minichem India that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court, which we consider pertinent to the matter before us : It is permissible to say that a partnership agreement creates and defines the relation of partnership and therefore identifies the firm. If that conclusion be right, it is only a further step to hold that each partnership agreement may constitute a distinct and separate firms. That is not to say that a firm is a corporate entity or enjoys a juristic personality in that sense. The firm name is only a collective name for the individual partners. But each partnership is a distinct relationship. The partners may be different and yet the nature of the business may be the same, the business may be different and yet the partners may be the same. An agreement between the partners to carry on a business and share its profits may be followed by a separate agreement between the same partners to carry on another business and share the profits therein. The intention may be to constitute two separate partnership and therefore two distinct firms. Or to extend merely a partnership, originally constituted to carry on one business to the carrying on of another business. It will all depend on the intent on of the partners. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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