2017 (2) TMI 619 - AT - Central Excise

Considering separate premises as single factory - Why the parties grouped against each serial number should not be regarded as constituting the same factory for the purpose of Notification No. 253/82 (earlier Notification No. 80/76) by the virtue of the facts that one unit is power operated and other is non power operated unit? - Held that - the issue involved in the present appeals have already been settled in this Tribunal s judgment reported as Commissioner of Cus. & C. Ex., Pune Vs. Swastik Dyeing & Bleaching Factory 2004 2003 (12) TMI 206 - CESTAT, MUMBAI where it was held that the Notification under reference viz. 253/82-C.E. will never apply, for the reason that the exemption conferred by N/N. 253/82-C.E. is applicable only if bleaching, dyeing or printing is carried on in one premises (factory) and the 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.

Issues Involved:
1. Delay in filing individual appeals.
2. Determination of whether separate units constitute the same factory.
3. Applicability of the extended period for demand under Section 11A.
4. Exemption eligibility under various Notifications.
5. Whether the processes undertaken amount to "manufacture" under the Central Excise and Salt Act, 1944.
6. Interpretation of the proviso to Notification No. 253/82-C.E.

Issue-wise Detailed Analysis:

1. Delay in Filing Individual Appeals:
The Tribunal considered the reason for the delay, which was due to the initial filing of a common appeal in time. It was later required to file individual appeals as per the Tribunal's opinion. The Tribunal allowed the COD applications, acknowledging the delay was justified.

2. Determination of Whether Separate Units Constitute the Same Factory:
The show cause notice questioned if various groups of parties should be regarded as constituting the same factory for the purpose of Notification No. 253/82. The adjudicating authority concluded that non-power operated units and corresponding power-operated units constitute a single manufacturing unit for the purposes of the Central Excise and Salt Act, 1944. The parties were required to apply for a license or amendment of the license under Rule 174.

3. Applicability of the Extended Period for Demand Under Section 11A:
The Tribunal found that the entire demand was time-barred and the proviso to Section 11A(1) was inapplicable. It was noted that the units existed prior to the addition of the disputed proviso to Notification No. 80/76-C.E., and thus, there was no wilful suppression to evade duty. The legislative history indicated that intentional evasion could not be attributed to the respondents.

4. Exemption Eligibility Under Various Notifications:
The Tribunal discussed the legislative amendments and various notifications, including Notification No. 137/77-C.E., Notification No. 291/79-C.E., and Notification No. 253/82-C.E., which provided exemptions for processes done without the aid of power or steam. The Tribunal upheld that the processes undertaken by the respondents were exempt under these notifications.

5. Whether the Processes Undertaken Amount to "Manufacture" Under the Central Excise and Salt Act, 1944:
The Tribunal determined that processes such as bleaching, dyeing without aid of power, calendering, and stentering did not amount to "manufacture" as per Section 2(f) of the Act. The processes were exempt under relevant notifications, and hence, there was no liability to duty. The Tribunal cited various judgments, including those of the Hon'ble Supreme Court, to support this conclusion.

6. Interpretation of the Proviso to Notification No. 253/82-C.E.:
The Tribunal clarified that the bar created under the proviso to Notification No. 253/82-C.E. applies to a factory and not to a manufacturer. The units in question were separate factories, each with distinct processes. The Tribunal rejected the department's argument that the units should be considered a single factory based on factors like common management and operational unity. The benefit of the notification was extended to the respondents.

Conclusion:
The Tribunal dismissed the Revenue's appeals, applying the decision in the case of Swastik Dyeing & Bleaching Factory, which had settled the issues in favor of the respondents. The entire issue was resolved based on the precedent set by the Tribunal's earlier judgment. The Revenue's appeals were dismissed, and the findings of the lower authority were upheld.

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