9911796707
TMI Blog1986 (9) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee against Collector of Central Excise, Baroda s Order-in-Original. Brief facts, in so far material, are as follows : 3. The assessee is manufacturing H.D.P.E. Granules either on its own or on the basis of granules supplied by another proprietary concern Prithvi Polymers on job basis. Thereafter the fabric is cut into shape and size and then stitched into HDPE sacks. In the financial year 1979-80 till around August, 1979, the assessee had been manufacturing HDPE fabrics and sacks in the same premises at 42, Industrial Estate, Vatva. Later on, it transferred the stitching operation of the cut to shapes and size fabrics to another premises at C-1/19, Vatva where stitching was done by the two persons employed by the assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Collector be not restored; the said show cause notice was received by the assessee on 18.7.82. 4. The assessee has urged that so far as the show cause notice issued by the Central Government is concerned, it is clearly time barred in terms of third proviso to Section 36(2) inasmuch as it has been issued after six months of the date of communication of the impugned order to the Collector of Central Excise, Baroda. This position is now well settled in view of the judgment of larger Bench reported in 1986 (7) ECR 461. This judgment clearly holds that the subject period prescribed in Section 11 A regarding recovery of non-levy of short-levy must apply to review show cause notices issued under the third proviso to Section 36(2) even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(m) of the Factories Act, 1948. He submitted that there is no bar for a manufacturer to avail of two notifications separately if he is otherwise eligible for the same. In the instant case the assessee is eligible to benefit of notification 85/79 in respect of goods manufactured at C-1/19, Vatva. He is also eligible to the benefit of notification 89/79 because by virtue of Explanation III to the said notification the goods must be produced in a factory covered by section 2(m) of the Factories Act, 1948. Therefore, for the purpose of computing the value limit of clearances by or on behalf of the assessee in terms of notification 89/79, the clearance of HDPE sacks from C-1/19, Vatva would not be taken into account. In support of his p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal where mere supply of raw material does not make a person a manufacturer or where common premises, occasionally use machinery etc. do not lead to a conclusion that the factory is one and the same or that the two persons having separate portions of the same premises are one and the same manufacturer. In this connection, he relied upon 1986 (25) E.L.T. 423 in the case of Shakti Udyog, Jullundhur v. Collector of Central Excise, Chandigarh and 1985 (19) E.L.T. 441 in the case of Jagjivan Dass and Company v. Collector of Central Excise, Bombay. In view of these two rulings, he submitted that the manufacture at C-1/19, Vatva cannot be taken as one undertaken by the assessee. He, however, submitted that his alternative plea as referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a factory in terms of Section 2(m) of the Factories Act. Similarly, the goods produced at these premises cannot also be taken into account for computing the value limit of the clearances at 42, Vatva on behalf of the assessee in terms of Explanation III to notification 89/79. We observe that in dealing with this plea of applicability of notifications 85/79 and 89/79 the Collector has held that the premises at C-1/19, Vatva is nothing but a precinct of the assessee s factory at 42, Vatva. His finding in para 20 is the following words :- It is obvious that as a result of the dispersal of manufacturing activity, the premises on plot No. C-1/19, where the fabrics were subjected to the process of stitching, became a precinct of the main pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(m) of the Act. That being so, the benefit of notifications 89/79 and 85/79 to the manufacturer i.e. the assessee cannot be denied in the instant case. 10. What the Department contends to do in this case has been intended to some extent by a subsequent notification 178/85, dated. 1.8.85 by which goods produced in a premises other than a factory defined in Section 2(m) of the Factories Act, 1948 are exempted only when their clearances by or on behalf of a manufacturer from such premises do not exceed Rs. 20 lakhs in a financial year. In other words, the contention of clubbing the clearance in respect of goods produced in a premises other than the factory as defined in the Factories Act cannot be accepted in the face of notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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