TMI Blog2004 (3) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of appellant No. 2 and also imposed penalty on them, as detailed therein. 2. The appellant No.1 is a proprietorship concern of Shri Somesh Satish Malik. This firm is engaged in the manufacture and trading of furniture and sanitary fittings since November, 2001. Similarly firm appellant No. 2 is engaged in the trading and manufacture of watch cases and parts thereof for the last 15 years. This firm is a partnership firm having 3 partners namely Somesh Satish Malik. Smt. Avani S. Malik and Smt. Usha S. Malik. The duty against firm appellant No. 1 had been confirmed by clubbing its clearances for the period 1-4-2000 to 16-12-2002 with that of appellant No. 2 and another firm known Pioneer Hardware Industries which had 3 partners namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 6. We have heard both the sides. So far as clubbing of the clearances for the period in dispute of the firm appellant No. 1 with the other 2 above said firms is concerned, the same in our view, could not be legally done by the adjudicating authority. The appellant No. 1 is a proprietorship concern of Somesh Satish Malik. It is, in fact, no firm in the eyes of law, because for constituting a firm under the law there has to be two or more partners; a single man cannot constitute firm under the partnership Act. Therefore, appellant No. 1 cannot be legally termed as a firm having any legal entity. 7. The firm Pioneer Hardware Industries, as detailed above, had 3 partners and Somesh Satish Malik was only one of the partners. Copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances of this firm could not be legally added to that of the firm appellant No. 1. The impugned order of the Commissioner in this regard cannot be legally sustained. 9. There is ample evidence on the record to prove that the firm appellant No. 1 had been getting the goods manufactured on job work basis from outside. It is quite evident from the testimony of Manager of the firm that it did not had the capacity to making the casting for certain types of plated hardware articles. For the process of buffing, coating, finishing etc. the firm was dependent upon another partnership firm, Sumcon Auto Industries, while for processing of plating, the buffed die cast goods were sent to M/s. Khodiyar Electroplating and M/s. Radhe Metals. The st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured by it. The goods procured by both the appellants from the job workers could not be held to had been manufactured by them so as to saddle them with the duty demand. 11. There is also no tangible evidence to establish that there was any mala fide non-accountal of the goods by firm appellant No. 2. No shortage of inputs or finished goods had been detected. It is not the case of the Department that certain goods were in the process of loading in the truck without payment of duty when officers visited the premises. The goods were manufactured by the firm appellant No. 2 out of the duty paid inputs and the same were duly entered in the record. For the goods got manufactured from the job workers, the firm had produced the invoices a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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