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TMI Blog1993 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Collector of Central Excise is satisfied on a representation by the manufacturer that because of power cut, natural calamities or for other reasons mentioned therein, if the manufacturer is not in a position in any year to raise the production in one of his factories beyond me base clearances in respect of such factory, then in relating to such manufacturers, clearances from such factories shall not be taken into account for calculating the base clearances and clearances in excess of the base clearances in such year. The appellants, herein, filed a refund claim before the Assistant Collector in the light of the amending Notification 20/77. The Assistant Collector issued a show cause notice to the appellants alleging that in view of the fact that it appeared that the appellants did not have two separate factories, but have two manufacturing sections as part of the same factory and as such their request for redetermination of base clearances excluding production of plant No. 2 was not acceptable. It may be stated that the ground for refund was that their plant No. 1 and plant No. 2 were separate factories. It was stated by the appellants that in view of the power cut imposed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot taking a separate Central Excise licence for plant No. 2 cannot be a valid ground for denying the benefit given by the exemption notification. Ld. Counsel submitted that both the authorities below have ignored the physical separation of the two premises and they operate independently. The Ld. Counsel cited and relied upon the decision of the Andhra Pradesh High Court reported in 1978 (2) E.L.T. 489 in the case of Assistant Collector v. Nizam Sugar Factory of say that two factories can be located in the same premises. He also cited the case law reported in 1985 (20) E.L.T. 143 of the Tribunal in the case of Agarwal Rolling Mills, Mirzapur v. Collector of Central Excise, Allahabad to say that if two units are physically separate, they can have two licences separately. Reliance was also placed on the case law reported in 1990 (46) E.L.T. 569 in the case of Collector of Central Excise v. Birla Jute Industries, in the same context. It was, further, argued that not taking out a separate licence, cannot act as estoppel for claiming the benefit of the notification and in this regard reliance was placed on the Supreme Court decision in the case of Dunlop India Ltd. Madras Rubber Factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Table hereto annexed (hereinafter referred to as the specified goods) and falling under such Item Number of the First Schedule to me Central Excises and Salt Act, 1944, (1 of 1944), as are specified in the corresponding entry in column (2) of the said Table and cleared from one or more factories in excess of the base clearances by or on behalf of a manufacturer, from so much of the duty of excise leviable thereon under the said item (read with any relevant notification issued under the said sub-rule (1) of Rule 8 and in force for the time being), as is in excess of , seventy-five per cent of such duty, subject to the following conditions, namely: (a) The clearances made during any financial year shall be separately calculated for all the goods specified in column (3) of the said Table against each serial number specified in the corresponding entry in column (1) thereof on the basis of the accounts maintained under the Central Excise Rules, 1944, in terms of the unit for calculation specified in the corresponding entry in column (4) of the said Table; (b) The clearances of any specified goods exempted from the whole of the duty leviable thereon in any financial year shall not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise licence and every manufacturer is required to take out licence. The Rules also prescribed for the approval of the ground plan and all other equipments comprising of the factory and its premises. Rule 174 and Rule 175(2) require that if the same person desired to have licences for carrying on business, in more than one capacity, he has to submit separate application; Rule 175(3), provides that where the applicants have more than one place of business, he shall obtain separate licence in respect of each such place of business. There is, therefore, no doubt that if the same manufacturer has to carry on business in more than one place, he must have separate licence in respect of each factory. See, in this context, the decision of the Bombay High Court reported in 1981 (8) E.L.T. 128 (Bom.) in the case of Jenson and Nicholson (India) Ltd. v. Union of India and Others. Admittedly, in this case, the applicants have not obtained separate Central Excise licence Form L4 for plant No. 2. On the other hand, they have furnished the figures of production of both the plants together for the purpose of determining the base clearances under Notification 198/76. Another admitted position is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not pari materia. 8. It may also be noted that whenever the Government intends to give a meaning different from that in the Central Excises and Salt Act to the term factory for the purpose of granting exemption, it is specifically expressed in the notification as for example in Notification 46/81, dated 1-3-1981 for ex- empting the goods under Item 68 of Central Excise Tariff other man the goods manufactured in a factory. In this notification, there is an Explanation which specifically states that in the notification expression factory has a meaning assigned to it under Section 2(m) of the Factories Act, 1948. Such is not the case in the exemption notification, we are dealing with in this appeal. Moreover, in the present case, it is a question of considering the applicability of an exemption notification for exempting the goods leviable to duty under the Central Excises and Salt Act, which is a self-contained code for the purpose of such levy alongwith its Rules. In the Central Excise Rules, Rule 44 lays down that every manufacturer, who is so required by the Collector before beginning to manufacture excisable goods shall declare factory premises and equipment intended to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. Therefore, the first exercise that has to be undertaken is if the. production of packing and wrapping material in the factory as it existed prior to 1964 is covered in the notification." 9. We, further, find that the appellants factual situation is not similar as in the case of Assistant Collector (Central Excise) v. Nizam Sugar Factory (supra) wherein the ultimate conclusion was that the two units are entitled to have separate licences and had in fact been granted so earlier which the Deptt. sought subsequently to revoke. In the case of Jenson Nicholson v. UOI (supra), the High Court held that if the manufacturer carried on business in more than one place under Rules 174 and 175 of Central Excise Rules, he must have separate licences for each factory. Therefore, it is established by these decisions that if the same manufacturer carried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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