TMI Blog2008 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... he same - after export he filed the refund claim - CESTAT rejected the refund claim - Held that - Appellant is entitled to get refund - order of commissioner (appeals) granting refund restored - order of CESTAT reversed. - T.R.C. No. 3 of 2004 - - - Dated:- 14-7-2008 - K.L. Manjunath and B.V. Nagarathna, JJ. Shri G. Venkatesh, Advocate, for the Petitioner. Shri Arvind Kumar, A.S.G., for the Respondent. [Judgment per : K.L. Manjunath, J.].- We are required to answer the following, question of law in the present reference. "Whether the Tribunal was correct in holding that the appellant was not entitled to claim refund as provided under Rule 57(F) (4) and Rule 57(F)(13) of the Central Excise Rules as it cannot be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for which a detailed reply was sent by the appellant bring to the notice of the authorities about the definition of the word 'manufacture' under the Central Excise Act. However, the reply sent by the assessee was not accepted and the contention of the assessee was rejected by its order dated 29-9-1997. Being aggrieved by the order-in-original, the appellant filed an appeal before the Commissioner of Central Excise appeals, which appeal came to be allowed by holding that the appellant is entitled for the refund of the duty. 5. The revenue being aggrieved by the order of Commissioner of Central Excise filed an appeal before the Tribunal order-in-appeal as 010064/99. The Tribunal allowed the appeal filed by the department and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act. 8. Per contra, learned counsel for the respondent/revenue contends that when the appellant is getting the products manufactured through other concern, the appellant cannot be treated as a manufacturer and actually the person who is manufacturing the products alone has to be treated as a manufacturer. The exemption granted to the manufacturer under the notification No. 85/37 dated 1-3-87 under the Central Excise Act cannot be mis-utilized by a non-manufacturer, and requests the court to answer the question against the appellant 9. After hearing the learned counsel for the parties in order to consider the question of law framed, we have to consider the word 'manufacture' as de fined under Section 2(f) of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve reply, it is clear that the assessee is a creation of M/s. Lamina Suspension Products Limited, which is indulging in manufacturing the finished products, In other words both the units are one and the same and they are sister concerns. 11. Considering the word 'manufacturer' as defined under Section 2(f) of the Act, as it includes any person engages in their production or manufacture on his own account, we have to hold that the manufacturer M/s. Lamina Suspension Products Limited is manufacturing the goods on behalf of the M/s. Lamina International and the assessee is having a full control and supervision over the activities of M/s. Lamina Suspension Products Limited. Therefore, on facts we are of the opinion that the products manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of this case are entirely different. In the aforesaid case theft Lordships while considering the right to claim exemption by a manufacturer have decided the aforesaid case and therefore, the same is not applicable to this case. Their Lordships while considering the aforesaid case have come to the conclusion that the person who was claiming exemption had no control or supervision over the manufacturing process or manufacturing parties. But in the instant case it is not so. 14. He has also relied upon the Judgment of Supreme Court in the case of Collector of Central Excise, Baroda v. M.M. Khambhatwala reported in 1996 (84) E.L.T.161 (S.C.). There also their Lordships have ruled that there was no super vision over the manufacturing o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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