9911796707
TMI Blog2008 (6) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... 7170 of 1998, the challenge is to the order signed on 23.5.1997 and dispatched to the petitioners on 19.9.1997. 3. The petitioner Company is a Private Limited Company and was incorporated in the year 1977. It commenced manufacture of Calcium Gluconate from the year 1977. It had a tie-up with M/s Sandoz India Ltd. 4. During the year 1979, the individual Directors of the petitioner company promoted another company called the Global Calcium India (Pvt.) Ltd. for the manufacture of Calcium Gluconate and Calcium Lactobionate with a tie-up with M/s Glaxo India Ltd. During 1991, they also started Calcitech India Pvt. Ltd. Which started manufacture of similar range of products for export. Although the three companies were Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals in Appeal Nos. 442, 443 and 446 of 1994. It was the stand of the petitioner that they are willing to abide by the order dated 1.11.1994 which is appealed in Appeal No.340 to 342 of 1996. 7. It is the stand of the learned Senior Counsel that he had made an oral mentioning before the CEGAT to pass final orders after taking into account the Miscellaneous Application filed by him and he was made to believe that the CEGAT will take into account the subsequent developments. However, to his shock, he received the final order rejecting his contention and holding that the latter two units were dummies of the petitioner company and, therefore, they are liable for excise duty by clubbing all the units as a single unit. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Common analytical lab (v) Diversion of orders for supply goods (vi) Common sales promotion and follow up (vii) Common Chairman for all the three units (viii) Common staff for all the three units 11. The learned Senior Counsel submitted that none of these criteria can either singly or collectively be a foolproof test for deciding the clubbing question. In this context, he referred to the judgment of the Supreme Court in Arca Controls Pvt. Ltd. v. Commissioner of Central Excise [2003 (158) E.L.T. 272]. The following passage found in the said judgment may be referred to:- "The Tribunal found that seven companies namely JNM, SPIREX, CAMBRIDGE,JNMSS, KROHNE, FORBESONS and ARCA are carrying on activities together at the different un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remit the matter to the Tribunal for fresh consideration in accordance with law." 12. He also referred to the direction issued under Section 37-B of the Central Excise Act, 1944 so as to ensure uniformity of levy of duty of excise and the following passages found in the Notification may be extracted below:- (i) The question whether different partnerships having common partners are treatable as separate manufacturers or the same manufacturer, would be a question of fact in each case to be determined on the basis of such factors among other, like composition of the partnership, existence of the factory, licence, nature of goods manufactured etc. (ii) Different firms will be treated as different manufacturers for the purpose of exemption l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There are no two opinions that both the factories are near to each other and they are owned by the same owner and the common balance sheet is maintained. But, by this can it be said that both the factories are one and the same? The definition of "factory" as defined in Section 2(e) of the Central Excise Act, 1944, reads as under: "2. (e) "factory" means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on;" Para 8: Simply because both the factories are in the same premises, that does not lead to the inference tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed ASGI submitted that the writ petition is not maintainable under Article 226 of the Constitution against the order of the CEGAT and the petitioner should have approached the Tribunal for making a reference to this Court. Apart from the preliminary objection, he took this Court through the order passed by the CEGAT and contended that the clubbing was done based upon a factual finding and such a finding of fact cannot be interfered lightly and, therefore, the writ petitions should be dismissed. He also placed reliance upon the averments made in the counter affidavit filed in both the writ petitions. 15. With reference to the preliminary objection, it must be stated that even in case of Tribunals constituted under Articles 323A and 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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