TMI Blog1984 (4) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... 978 and exemption from licensing control under Notification 111/78, dated 2-5-1978. 3. Meteor is a Public Ltd. Co. registered under the Companies Act, 1956 and is engaged in the business of manufacturing automobile pistons and other parts falling under T.I. 34A of C.E.T. at its factory and Head Office at Kattawada, District Ahmedabad. For the purpose it holds a license in form L4 issued by the Excise Department. Telstar is a registered partnership firm engaged Inter alia in the manufacture of motor vehicle parts, namely, pistons falling under Tariff Item 34A of the C.E.T. Meteor at the material time had five Directors, namely :- 1. Ram Krishan Parekh 2. Amol A, Shah 3. Smt. Sneh Veena Ben Shah 4. Chimubhoy M. Musha 5. A.P. Amin The last Shri V.P. Amin is nominated by Gujarat State Finance Corporation, as the Government of Gujarat has invested funds in Meteor. Shri Ram Krishan Parekh at the material time was Managing Director of Meteor but on objection being raised by Company Law authorities he resigned the office in 1982. Of Telstar, the partners are R.M. Parekh, Amol A. Shan and Smt. Sneh Veena Ben Shah. It would be seen that the three partners in the Telstar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der T.I. 34-A of the Central Excise Tariff. 5. Aggrieved with the order, the appellants have filed the present appeals to the Tribunal. At the hearing of the appeal Shri Nargolwala, learned Consultant for Meteor in his extensive arguments submitted that the case depended on the interpretation of definition of Manufacture set out in Section 2(f) of the Central Excises and Salt Act, 1944. The question in the present two appeals was who was the manufacturer of the Pistons which admittedly were manufactured at the factory of Telstar. He submitted that Meteor is a Public Limited Co. incorporated under the Companies Act; whereas Telstar is a Registered Partnership firm. During the course of his arguments, he admitted that the three partners of M/s. Telstar at the material time were Directors of Meteor and one of them was the Managing Director. He, however, submitted that Meteor has a separate juridical identity different from its shareholders and merely because the Partners and Directors in Meteor and Telstar were common, there cannot be an inference that their interest were in any way common or close linked. It was explained that Meteor had Italian collaboration for manufacturing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Accounts and financial sources of the two i.e. M/s. Meteor and M/s, Telstar were totally separate from one and another and that profits made by Telstar did not flow back to Meteor. 6. Shri Nargolwala in his arguments cited the following precedents : (i) A.C.C.E. C. v. Shri J.C. Shah - 1978 E.L.T. J 317 (Supreme Court); (ii) Cibatul Ltd. P.O. Atul v. Union of India and others - 1978 E.L.T. J 68 (Gujarat) ; (iii) Hind Lamps Ltd. v. Union of India and others - 1978 E.L.T. J 78 (Allahabad) ; (iv) Bata India Ltd. v. Assistant Collector of Central Excise, Patna - 1978 E.L.T. J 211 (Patna); (v) Ganga Dhar Ram Chandra v. Collector of Central Excise, Allahabad and Others - 1979 E.L.T. J 597 (Allahabad); (vi) Andhra Re-rolling Works and others - 1979 E.L.I. J 600 (Andhra Pradesh) ; (vii) Batliboi and Company v. Union of India and others - 1980 E.L.T. 1 (Bombay); (viii) Philips India Ltd. and others v. Union of India and others - 1980 E L.T. 263 (Allahabad); (ix) Surat Bottling Company Ltd. - 1980 E.L.T. 353 (GOI) ; (x) H.C.M. Engineering Complex - 1980 E.L.T. 486 (GOI); (xi) Gentron Industrial Alliance Ltd. v. Union of India and others - 1980 E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not contravened any Rule. Both the appellants also urged that notice under Section 11A of the Act for demand of duty could be made only by an Asstt. Collector and not by Collector. The proceedings initiated by the Collector of Central Excise were therefore illegal and without jurisdiction. 8. On behalf of the Respondent Shri V. Lakshmi Kumaran, SDR argued that the matter should be viewed from the totality of circumstances. He admitted that the case law on Brand names and the juridical status of two units having common or same partners was against the Department. He submitted that some of the decisions which are against the appellants have been challenged in Supreme Court and binding nature of such decision had been lost. In particular he referred to decision of the Tribunal in G.D. Industrial Engineers, Faridabad v. C.C.E., Chandigarh - 1983 E.L.T. 1994 CEGAT wherein, it was held that if in two partnership firms all the partners were common, their product could not be clubbed, as they were two different manufacturers. Shri Lakshmi Kumaran submitted that correctness of this decision was open to question and an appeal had been filed against the same in the Supreme Court. He subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in the form annexed to the notification before 15th day of April of each financial year. Notification No. 80/80-C.E., dated 1-6-1980 which superseded Notification No. 71/78-C.E., dated 1-3-1978 grants concession to small scale units. First clearance of the specified goods upto an aggregate value not exceeding ₹ 15 lakhs are free from the whole of duty of Excise leviable thereon. Clearances exceeding this amount also get concession in the rate of duty which is not material for the present appeal. The notification inter alia is subject to certain exceptions under Clause (11), the notification is not applied to a manufacturer if the aggregate value of clearance of specified goods by him or on his behalf for home consumption from one or more factories during the preceding financial year exceeded ₹ 15 lakhs and to a manufacturer who manufactures excisable goods under more than one Tariff Item of the Schedule the aggregate value of the clearances of goods manufactured by him or on his behalf for home consumption from one or more factories during the preceding financial year had exceeded ₹ 20 lakhs. Parties agreed that if the clearances by Telstar be held to be manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise v. J.C. Shah (1978 E.L.T. J 317) relating a person-owner being partner in two places separate partnership factories would also support this view. Therefore, merely because three Directors in M/s. Meteor were partners in M/s. Telstar would not itself lead to the conclusion that M/s. Telstar was a dummy or camouflage for M/s. Meteor. [We do not express any opinion, one way or the other, regarding M/s. G.D. Industrial Engineers, Faridabad v. Collector of Customs and Central Excise, Chandigarh - 1983 E.L.T. 1994 (CEGAT), as the order is not directly applicable in the present appeals.] 14. Dealing with the various aspects of interpretation of the word Manufacture , the Allahabad High Court inter alia held that it is only if those who own a factory are a dummy concern or a camouflage for the buyer of goods produced that the latter can be considered to be a manufacturer. The High Court further pointed out that for such a finding financial involvement needed for manufacture or producing the goods, control or supervision over the production aspect of the buyer is necessary. In the absence of these, transaction between the two parties would appear generally to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw material to Telstar. This is disputed by M/s. Telstar. Be-however, it may be, this fact alone would not make M/s,. Telstar a manufacturer by or on behalf of Meteor. Decisions on the point are : (i) Gangadhar Ram Chandra v. Collector of Central Excise Allahabad and others - 1979 E.L.T. J 597 (Allahabad), (ii) Andhra Re-rolling Works and others-1979 E.L.T. J 600 (Andhra Pradesh);/and (iii) Bata India Ltd. v. Asstt. Collector of Central Excise Patna - 1978 E.L.T. J 217 (Patna). 18. Some arguments were addressed that the Offices of Meteor Alloy Castings and Meteor were housed in the same premises. The Collector has referred to this in Para 17 of his order but has not based his findings on this aspect. Besides Metalloy Castings is not before us, we, therefore, do not deal with this aspect of the matter. 19. The appellants have filed various documents like deed of partnership, papers showing M/s. Telstar s manufacturing activities prior to August, 1980, sales tax and small scale industries certificate from M/s. Telstar, Factory Act Licence, plant and machinery purchased, balance sheet. Income-tax assessment and Chartered Accountant s certificate. There is nothing to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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