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TMI Blog2007 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... . Penalties were also imposed on the Managing Director of M/s. Aravindh and the Managing Director of M/s. Arudra. The Commissioner's order is under challenge in these appeals of M/s. Aravindh, M/s. Arudra and their Managing Directors. 2. It appears from the records that M/s. Aravindh and M/s. Arudra had entered into a 'Memorandum of Understanding' dated 25-4-2002, where-under the factory manufacturing MS ingots, bars and rods was entrusted to M/ s. Arudra for independent day-to-day operations with effect from the said date and accordingly M/s. Arudra undertook the manufacturing activity independently since 25-4-2002. The department, after investigations, reached a conclusion that the two companies shared the manufacturing activity and, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices did not satisfy the requirements of Section 4(1)(a) of the Central Excise Act. He determined the assessable value of the goods on the basis of the price charged by M/s. Arudra from their dealers. Accordingly, he quantified the duty and directed both the companies to pay the amount 'jointly' and 'severally'. Earlier payment of Rs. 92.00 lakhs by M/s. Aravindh was appropriated towards this demand and both the companies were directed to pay the balance amount of duty of Rs. 38,41,887/- forthwith. Penalties also followed. 4. After hearing both sides and considering their submissions, we have seen an interesting issue cropping up: Whether duty could be demanded from two different persons in respect of the same goods. Relying on the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in Appeal Nos. C/44, etc./2002/MAS [Sundaram Finance Ltd. & Ors. v. Commissioner] 6. After considering the submissions, we find that the question whether there could be two manufacturers in respect of the same goods is no longer res integra. There cannot be two manufacturers for the same product as held by the Tribunal in Orissa Women's Voluntary Services (supra), Tecumseh Products India (supra) and Vadilal Embroidery Unit (supra). It was held to the same effect by the Allahabad High Court in the case of Philips India Limited and Others v. Union of India and Others - 1980 (6) E.L.T. 263 (All.). In view of these judicial authorities we cannot accept the finding of the Commissioner that the subject goods had been manufactured jointly by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, by such person or his agent, the pro visions of this sub-section shall have effect as if for the words one year, the words "five years" were substituted." Use of the words "the person chargeable with the duty" in the main part of sub section (1) and of the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness of electroplating. The question considered by the Tribunal was whether the values of clearances of the 3 units were to be clubbed for purposes of Notification No. 175/86-C.E. (SSI exemption). The Tribunal answered the question in the affirmative and upheld the order of the Collector of Central Excise demanding different amounts of duty from the three units. Any particular amount of duty was not demanded from each of the units in respect of the same goods. In the case of Hindustan Zinc Ltd. (supra), show-cause notice was issued to the said company and no show-cause notice was issued to their job worker. The Apex Court remanded to the Tribunal the question whether it was the company or their job worker who was liable to pay duty. The ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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