TMI Blog1999 (10) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... he marketing. 2. Prior to 1-4-1993, the appellant had adopted the wholesale prices at which M/s. Berger Paints sold the goods as the basis for working out the assessable value of the paints and duty was being paid at the assessable value so worked out. There were disputes about the deductions to be allowed while working out the assessable value from the sale price of Berger Paints. Commissioner of Central Excise (A) passed Order-in-Appeal Nos. 974-975 (513-514-Ahd) C.E./Collr.(A)/Ahd., dated 20-1-1993 which was subject matter of further appeal before this Tribunal and the Tribunal passed its Order Nos. 739-740/95-A, dated 8-11-1995 on the elements eligible for deduction while fixing the assessable value. This order has become final as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Berger Paints are being considered the reason for holding that the appellant is only an agent of Burger Paints, the clauses of the agreement which have been specifically relied upon in the Order-in-Original are reproduced below :- 1. In terms of the agreement the processor has undertaken to manufacture and/or process diverse paints, varnishes, enamels, synthetic resins, dry colours and allied products. 2. The processor process and manufacture the products for supply to M/s. BPIL in packages and quantities to be specified from time to time and in accordance with the requirements of M/s. BPIL, Calcutta. 3. M/s. BPIL, Calcutta, supply to the processors the raw material, containers and packing material necessary. 4. The processor in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminate the agreement in the event of the processor failing to make available the necessary infrastructure with all the required facilities for processing the products to the entire satisfaction of M/s. BPIL, Calcutta. 10. M/s. BPIL, Calcutta, has hired out the plant and machinery to the processor. 5. In view of the aforesaid terms and conditions of the agreement covering the processing carried out by the appellant, the Excise authorities held that the manufacture by the appellant itself is on account of the agreement. All the materials required for the manufacture including packing materials are supplied by M/s. Berger Paints. The goods are manufactured strictly in accordance with the processing details, quality, specification and qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pawan Biscuits case. Appellant was a job worker and that does not create any relationship of principal and agent between the iob worker and the supplier of raw material. There was also no control or supervision over the appellant by Berger Paints. 7. As alternative to the claim for assessment based on the cost of raw materials and job charges, the appellants have submitted that the decision impugned in the present order is in any case not correct as the Tribunal has already held in its Order Nos. 739-740/95-A, dated 8-11-1995 that further deductions than were allowed in Commissioner (Appeals) Order Nos. 974-975 (513-514/Ahd) C.E./Collr.(A)/Ahd, dated 20-1-1993 were permissible. 8. As against the aforesaid submissions on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the terms of the agreement of manufacturing/processing. These terms indicate a very close relationship between the appellant and Berger Paints. The appellants are undertaking the manufacture/processing of paints and varnishes only because of the agreement between the two parties. The manufacturing has been started after the appellants hired out the plant and machinery of Berger Paints. The processing/manufacture for Berger Paints is the sole activity of the appellant. The agreement provides that adequate processing work will be given to the appellant by Berger Paints. All the items required for the processing are supplied by Berger Paints. The processing is under the supervision of Berger Paints and on completion of processin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to supply the entire raw materials. It was for them again to supply standards of production and to ensure that the standards were kept. The entire marketing was also done by Berger Paints. Thus, the appellant did not have any of the attributes like capital, machinery and capacity to carry out the activity of manufacture. The position was the same in the case of Pawan Biscuits also. The situation of these assessees is clearly distinguishable from the facts in the Ujagar Prints case. In that case, the job worker was an independent manufacturer with his own machinery, labour and expertise and was not under the control of the supplier of the raw materials. His was an enterprise on its own, separate from the raw material supplier. Therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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