TMI Blog1991 (2) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A of Central Excises Salt Act, 1944 for the period 20-6-1984 to 6-2-1985 holding that the appellants were not entitled to Notification 46/81, dated 1-3-1981. He also imposed a penalty of Rs. 50,000/- on the appellants under Rule 9(2)/173Q and 226 of the Central Excise Rules. The facts, in brief, are that on the basis of intelligence gathered by the Central Excise officers of Bangalore that the appellants were wrongly availing of the exemption Notification 46/81 by mis-declaring the number of workers employed by them. The officers paid a surprise visit to the factory on 16-2-1985 and recovered certain documents which include overtime sheets, attendance cards and on verification, thereof, the officers concluded that the appellants had empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers visit to their factory on 16-2-1985 was stated to be surprise visit, the officers did not find 10 or more persons actually working in their factory premises. The case was sought to be built up only on the seizure of certain documents. Explaining further, the ld. Consultant pointed out that there were other firms, namely, M/s. Fibre Shells and M/s. Sheltron Metals Limited and the officers for all the units are located in one and the same premises in Palace Road, Bangalore and in certain records, the names of all the staff, in the above premises are included. Regarding overtime payment, the document relied upon by the Department was one relating to overtime sheet dated 29-6-1984 showing 11 number of workers while their attendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cartons, bags and other packing containers whether or not printed or in assembled or unassembled condition. What they manufacture is composite containers which are articles of paper and paper board and need not be classified, according to the appellants, under Item 68. Therefore, there is no necessity for the appellants to claim exemption under Item 68 on the basis of number of workers employed. The ld. Consultant, in this regard, placed reliance upon Indian Textile Paper Tube v. Collector of Central Excise - 1984 (18) E.L.T. 35, although in the case of Fibre Foils v. Collector of Central Excise - 1988 (36) E.L.T. 174, the Tribunal s decision on classification was against them wherein the Tribunal held that composite containers are classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the production programme which shows, further, his role as a worker in the factory. On classification, the decision of the Tribunal is against the appellants and unless it is upset by a higher forum, the ratio of the decision, which is in favour of the Department, should be followed. 4. On a careful consideration of the submissions made by the parties, herein, it is observed that first the question of classification of the goods under Item 17(4) CET rather than under 68, was never put-forth before the adjudicating authority but has been raised for the first time in the appeal before this Tribunal. Even otherwise, the decision of the Tribunal in the case of the appellants unit at Bombay, is against them reported in 1988 (36) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory and not connected with the process of manufacture, as for instance, persons are employed for post manufacturing or non-manufacturing activity like marketing and distribution. The worker should be employed in an activity having something to do with manufacturing and production of excisable goods. It may also be noted that for the purpose of computing the number of workers, even if for a day a factory employs 10 or more workers in case of power operated factory, the unit manufacturing the product, will become excisable for the next 12 months which will be the effect of the adoption of the definition of factory under Section 2(m) of the Factories Act in the Notification 46/81. Therefore, taking the case of Shri Chandran and Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory. The appellants have also not plausibly explained the evidence of the form filed before the Inspector of Factories where there was re-writing of the number of workers from a larger number to 9 and nil. The explanation that this was a rough copy fails to carry conviction as the question arises now a rough copy can be preserved so long till Feb., 1985. The appellants have also relied upon their letter to the Chief Inspector of Factories for intimating reduction of manpower. We do not have any evidence of the response from that authority whether the consequential surrender of their license was accepted. The letter also mentions the reason as due to insufficient sales, whereas the Collector records in his order the fact that the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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