TMI Blog2014 (6) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to purchasers directly, claiming the goods to be job worked goods, we have no hesitation in our mind that proviso to Section 11A is invokable. Interest under Section 11AB and penalty under 11AC are also upheld for the same reasons - Decided against assessee. - E/3106-3108/2004-Mum. - Final Order Nos. A/338-340/2013-WZB/C-II(EB) - Dated:- 3-5-2013 - Shri Ashok Jindal, Member (J) and P.K. Jain, Member (T) Shri Bharat Raichandani with P.V. Sadavarte, Advocates, for the Appellant. Shri Ahibaran, Additional Commissioner (AR), for the Respondent. ORDER Heard both sides. 2. Facts in this case are - based on an intelligence about duty evasion by M/s. Shree Krishna Industries (appellant No. 1) Central Excise Officer visited the said unit located at S-5, M.I.D.C, Nagpur. It was found that appellant No. 1 was manufacturing sand cores (since 1991). These Sand Cores were being manufactured and sold to M/s. Nagpur Alloy Castings Ltd. Nagpur. Shri Ashok Prasad is one of the partners and main person in M/s. Shree Krishna Industries. In 1995, instead of manufacturing on their own account, appellant No. 1 started manufacturing the same as a job worker on behalf of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be; and (b) that in the event of his failure to do so, he undertakes to pay excise duty, if any, payable on such goods, but for the exemption contained in this notification, as if such goods were manufactured by the said supplier and sold on his own account : Provided that the waste or bye-product, if any, generated during the process of such job work shall also be exempt from the whole of the duty of excise leviable thereon under the said Schedule if- (i) such waste or bye-product is used by the job worker for the manufacture of the said specified goods within his factory; or (ii) returned to the said supplier and are used in the factory of the said supplier in or in relation to the manufacture of the specified goods. Explanation. - For the purposes of this notification, the express job work means processing of or working upon raw materials or semi-finished goods supplied to the job worker, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for the aforesaid process, and the express job worker shall be construed accordingly. [Notification No. 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Investigations, the only process claimed to be carried by appellant No. 2 3 was cleaning of excess sand. It was also claimed initially that finished sand cores were sent to buyer (viz. M/s. Nagpur Alloys Castings Ltd.) through Auto and hand cart. During investigation, it was found from the documents at the final purchaser end (M/s. Nagpur Alloy Casting Ltd.) that goods were received in truck and the truck details were tallying with the one on which goods were send by appellant No. 1. On confrontation with this evidences, now they claim that truck used to wait in the premises of appellant No. 2/3. The nature of goods is Sand Core. There does not appear to be any explanation why the so called cleaning of excess sand was not being done in appellant s unit. During investigation, no labour (regular or casual) was ever found to have worked with appellant 2 or 3. In fact, unloading and again loading in truck involves risk relating to breaking of sand core. Under the facts and circumstances, we are of the view that Sand Cores were fully manufactured in appellant 1 s factory and transported directly to the purchasers M/s. Nagpur Alloy Casting Ltd. and no operation was carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2003 for the period 1-6-1998 to 31-8-1999 on the grounds that supplier did not follow procedure prescribed under Notification 83/94-C.E. Tribunal held that on this ground it cannot be concluded that appellants made clearances with wilful suppression and intent to evade payment of duty. There was no dispute that supplier units were in existence and processing was also being done by them. This case Law has no relevance, applicability in the present case. The second case is CCE, Thane-II v. Parkman Polymer Industries reported in 2008 (226) E.L.T. 356 (Tri.-Mumbai) In this case Tribunal held that Principal manufacturers (A) cannot be dummy unit of job worker (B) when goods returned after processing by job worker were further processed by principal manufactures - Providing of machinery by A to B held not to make any difference as A had independent factory, machinery and workmen - It was immaterial that machinery of A was lying idle for a number of years or that one of partners of B provided interest free loan to A - Also, closeness of relationship or partners being common between A and B was immaterial as both had separate legal entities, Central Excise/SSI registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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