TMI Blog1979 (7) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Table below, which are cleared by any manufacturer for home consumption on or after the first day of April of any financial year, in the circumstances and to the extent specified in the corresponding entries in columns 2 and 3 respectively of the said Table, from so much of the duty leviable thereon as is in excess of the amount specified in the corresponding entries in column 4 thereof : Provided that where a factory producing any such goods is run at different times of any financial year by different manufacturers, the Nil and the concessional rates of duty shall apply only to the quantities not exceeding the limits specified in column 3 of the said Table : Provided further that for the period from 1st October, 1960 to 31st March, 1961, the Nil or the concessional rates of duty, as the case may be, shall be restricted to 50 per cent of the quantities specified in column 3 of the said table. We are not concerned with all the entries in the Table. We are concerned only with the entry relating to Oil Paints and Enamels, which is at Serial No. 3 in the Notification and at the material time, it reads as follows : TABLE Description of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst this order came to be decided by the Appellate Collector of the Central Excise, Bombay. The Appellate Collector took the view that : Whatever concessions are available in Central Excise Law, they are normally applicable to a manufacturer and if he has more than one factory, the production of all the factories have to be clubbed together. These orders are now challenged by the petitioners in this petition. 3. Mr. Bhat, the learned Counsel for the petitioners, has referred to the opening part of the Notification and has contended that the Notification in the opening part, though it does not refer to a factory, for the purposes of Notification each factory has to be treated separately as a separate entity and reliance was placed on the fact that both the factories are run under two separate licences and duty is collected separately in respect of the goods manufactured in these two factories. According to Mr Bhat, where the authority issuing the Notification wanted specifically to make a reference to a factory, it has been so made as in the case of the first proviso to the said Notification. In aid of the same argument, our attention has been invited to certain other not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded whether the conditions in the 2nd column are satisfied, the output will have to be considered in respect of each of the two factories at Panvel and Calcutta and since in respect of each of the two factories, the total output did not exceed 3000 Metric Tonnes from each of the two factories at Panvel and Calcutta. On the other hand, it is contended on behalf of the Union of India by Mr. Manjrekar that it is irrelevant for the purposes of the Notification whether the production is from one factory or more than one factory and, according to him, all that has to be found out is whether the output of a manufacturer exceeds 3000 Metric Tonnes or not. It is argued that both the Panvel and Calcutta Factories are owned by the petitioners. Therefore, the manufacturer in both the factories is the same and if the total output of this manufacturer exceeds 3000 Metric Tonnes, then the manufacturer will not be entitled to any exemption as contemplated by column No. 3. There is no dispute that the Rules provide for a separate licence in respect of each factory. Under R 172 which provides a procedure for obtaining licence, it is provided that : Every person referred to in Rule 174 shall ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. One has merely to look at the Notification and to decide whether the output of a manufacturer is less than 3000 Metric Tonnes and then if it is so whether he has cleared any goods for home consumption and if any goods have been cleared for home consumption, then the limited quantity of 750 Metric Tonnes is liable to exemption. 7. It is no doubt true that in the first proviso, a positive reference is made to a factory . The first proviso provides for a special case where the same factory is run at different times for a financial year by different manufacturers. A question which would necessarily arise in such a case is whether each of the manufacturers will be entitled to the exemption which is contemplated by the Notification. If the proviso was not there and if the same factory is run by different individuals at different times in a financial year, possibly each manufacturer being a different person, it would have been permissible for him to make a claim for exemption on the ground that his total output does not exceed what is specified in the Notification. This would positively have resulted in placing a premium on the factory run by different persons at different times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressly clear in the later Notifications. The later Notifications in our view were so worded more for the purpose of clarity than for making any fresh or additional provision. 8. We may point out that we are supported in the view, which we have taken by the decision of the Calcutta High Court in AIR 1958 Cal. 283 - Tincori Oil Mill v. Collector of Central Excise. The Notification in that case was substantially identifically worded and was as follows : In exercise of the powers conferred by Rule 8 of the Central Excise Rules, 1944, as in force in India, and as applied to the State of Pondicherry, the Central Government hereby exempts from the duty leviable thereon (i) the first 125 tons of Vegetable Non-Essential Oils cleared by any manufacturer for home consumption on or after the first day of April in any financial year; (ii) Vegetable Non-Essential Oils cleared up to a maximum of 10 tons by any manufacturer for home consumption during the month of March, 1956. Construing this Notification, the learned Judge held that : the words `any manufacturer meant any one manufacturer. In other words, if the manufacturer was common, then it did not matter how many factories h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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