TMI Blog2017 (2) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... e calendering in another premises (factory). If according to the department bleaching/dyeing/calendering are one integrated process and different premises where these activities are undertaken will therefore render these premises one factory, then no one will be able to comply with the proviso to N/N. 253/82-C.E. and Notification will be rendered nugatory. All the units under reference are separate factories and are not the precincts nor the part of the same premises - The various factors such as common management common administration, common sharing of water, job work transactions amongst them, close relationship amongst the partners etc. including the so-called operational unity are entirely irrelevant for the determination of the issue involved. The benefit of N/N. 80/76-C.E. as amended and/or 253/82-C.E. cannot be denied - appeal dismissed - decided against Revenue. - E/618 to 625 & 708 to 710/03 And E/COD/391 to 398 & 451 to 453/03 - A/85164-85174/17/EB And M/85175-85185/17/EB - Dated:- 2-1-2017 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Ashutosh Nath, Asstt. Commr.(A.R.) for Appellant Shri N.S. Patel, Advocate for respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties appeals on merit have been allowed and Revenue s appeals on limitation were dismissed therefore the present appeals deserve to be dismissed on the line of the aforesaid judgment. He also submits that even the respondent s appeals have also been allowed on merit in the decision of Swastik Dyeing Bleaching Factory Others (supra). 4. Shri Ashutosh Nath, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal. 5. We have carefully considered the submissions made by both the sides and find that the present appeals are offshoot of the common impugned order passed in respect of various parties. All the appeals of the parties have been allowed and the Revenue s appeals challenging setting aside the of demand for extended period were dismissed. The relevant para of the judgment is reproduced below: 14 . We have heard both sides and record our findings as under : Entire demand is time-barred and proviso to Section 11A(1) I. is inapplicable : (a) All the units have come into existence much prior to 24-11-1979, when the disputed proviso was added to Notification No. 80/76-C.E. for the first time. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the factory of production for the manufacture of cotton fabrics subjected to any further processing. In other words, the processed cotton fabrics, when further processed within the same factory of production were wholly exempt from payment of BED and AED. (d) Vide another Notification No. 290/79-C.E., also dated 24-11-1979, unprocessed cotton fabrics of T.I. No. 19I(9) were wholly exempted from BED and AED when used within the factory of production for further manufacture of processed cotton fabrics, falling under T.I. No. 19I(b). (e) On the same date i.e. 24-11-1979, another Notification No. 292/79-C.E. was also issued amending Notification No. 80/76-C.E. introducing the fateful proviso to the latter. Vide Notification No. 293/79-C.E., dated 24-11-1979 similar proviso was added to Notification No. 122/76-C.E. (f) As is obvious, the purpose for introducing the proviso in Notification No. 80/76-C.E. was to ensure that the duty would be paid by an integrated/composite mill at the final stage, say calendering. This is, because, but for the proviso, no duty would be paid on dutiable processes like bleaching, dyeing or printing carried on with aid of power or steam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 292/79-C.E. and also continued as a part of the subsequent Notification No. 253/82-C.E., rules out any possibility of wilful suppression of facts with an intent to evade payment of duty against the Respondents. If anything, the creation of independent units - and not the fragmentation, as alleged - and that to much prior to 24-11-1979 had achieved, albeit unknowingly, the real object and purpose of the legislature. In the light of the above discussion we uphold the finding that the demands are barred by limitation. Manufacturing Process would be exempt under Notification II. No. 137/77-C.E., dated 18-6-1977 having been undertaken without aid of power or steam and Finishing Processes viz. Calendering and Stentering do not amount to manufacture : (a) Prior to 1979, the relevant sub-item No. I of Tariff Item No. 19 read as under : COTTON FABRICS - .. . . 1. Cotton Fabrics other than (i) Embroidery in the pieces, in strips or in motives, and (ii) Fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials. However, Section 2(f) of the Act was amended vide Act (No. 6 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, these activities would be wholly exempt under Notification No. 130/82-C.E. effective from 20-4-1982 and under Notification No. 137/77-C.E., dated 18-6-1977 prior to 20-4-1982. As per Para 6 - Page 2 of Annexure A to SCN, SDC is undertaking calendering with aid of power, admittedly with plain rollers. Such process of calendaring has been held to be not amounting to manufacture within the meaning of Section 2(f) of the Act by the Hon ble Supreme Court vide judgments rendered in the case of Siddeshwari Cotton Mills (P) Ltd v. UOI Another reported in 1989 (39) E.L.T . 498 , and also Mafatlal Spinning Manufacturing Co. Ltd. v. CCE, 1989 (40) E.L.T. 218 (S.C.); and Bhartiya Textiles v. CCE, 1991 (53) E.L.T. 358 (Tribunal). (c) As per Para (a) on Page 5 of Annexure A to SCN, SDBF is undertaking the process of stentering . The term stenter; tenter has been defined and explained in the The Textile Institute - Textile Terms and Definitions (Eighth Edition) as under : stenter; tenter An open-width fabric-finishing machine in which the selvedges of a textile fabric are held by a pair of endless travelling chains maintaining welf tension. Note 1: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences to the units who had even paid duty separately under Compounded Levy Scheme upto 1979 and well before the period of alleged demand. The various processes were also being carried on separately in the said factories. Therefore, the benefit of exemption under Notification No. 80/76-C.E. as amended by Notification No. 292/79-C.E. and/or Notification No. 253/82-C.E. cannot be denied to the Respondents. This is the law laid down by the CEGAT in the case of CCE v. Kanjur Bleaching Co. Pvt. Ltd., 2000 (117) E.L.T. 47 (Tribunal). The test is whether the separate units are one factory or different factories is premises based in view of the clear language of the proviso to Notification No. 80/76-C.E. and/or 253/82-C.E. In the present case, each process viz., bleaching, mercerising, dyeing is self-complete and distinct and treated by Tariff itself as distinct taxable events. The process of calendering and stentering are also distinct. It is also not the case of the department that part of each process was being carried on in one premise and rest in another premise. It is also not the case of the department that the processes involved are so interdependent and interconnected that bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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