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TMI Blog1993 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... at village Imlai at the distance of 15 Kms. from the clinker unit. The clinker is transported to the grinding unit by trucks. The appellants filed a classification list under Rule 173B on 13-5-1987 claiming the benefit of Notification No. 124/87-CE, dated 29-4-1987 which prescribed a concessional rate of duty on cement manufactured out of clinker produced in the same factory. The appellants claim for concessional duty on cement was rejected by the Assistant Collector by his order dated 21-9-1987 on the grounds that the clinkering unit and the grinding unit being separate, the condition of the notification that cement should be manufactured out of clinker produced within the same factory was not satisfied. Being aggrieved by the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Narbada Cement Co. Ltd. by the Ministry of Industry stating that clinker produced by the same party should not be treated as clinker brought from outside. He added that the exemption under Notification No. 124/87-CE, dated 29-4-1987 could not be denied to the appellants since the intention of the Government to extend the benefit of the concessional rate of duty even when the clinker and grinding units of the same manufacturer were separately located was made clear by the amending Notification No. 221/87. In support of his submissions Shri Khaitan cited the following case law :- (1) Produce Exchange Corporation Ltd. v. Commissioner of Income-tax (Central) Calcutta - (1990) 77 I.T.R. 739 (SC); (2) Commissioner of Income-tax, Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Trib.); (2) Collector of Central Excise v. Birla Jute Industries Ltd. -1990 (46) E.L.T. 569 (Trib.); (3) Swadeshi Dyeing Bleaching Mills (P) Ltd. v. Union of India -1989 (41) E.L.T. 224 (Bom.).; 4. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that the only question that arises for consideration in this case is whether for the purpose of exemption under Notification No. 124/87, cement manufactured in one factory of the appellants could be deemed to have been produced out of clinker manufactured in the same factory even when the clinker was actually produced in another factory of the appellants situated at a distance of about 15 Kms. from first factory to which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excises and Salt Act as : any premises, including the precincts thereof, wherein or 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 We find that in the case of Bongaigaon Refinery and Petro Chemical Ltd. v. Collector of Central Excise reported in 1992 (57) E.L.T. 383, the Hon ble Calcutta High Court while examining the question whether Low Sulphur Heavy Stock (LSHS) manufactured in the Refinery Unit and utilised as fuel in Xylene Unit could be deemed as having been used in the same factory for the purpose of exemption under Notification No. 28/89-CE, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Assistant Collector, Central Excise v. Nizam Sugar Factory Ltd., Hyderabad reported in 1978 (2) E.L.T. (J 489) it follows that two factories belonging to the same manufacturer having separate places of business have to be treated as distinct and separate licence for each of them are required to be granted. Relevant extracts of the said judgment are reproduced below (Para 3): * * * * * * 10. From the above discussion, it follows that the question whether two plants can be treated as part of the same composite factory has to be decided having regard only to the definition of factory in Section 2(e) and the other relevant provisions of the Central Excises and Salt Act. Since the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r more workers were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily carried out. The Tribunal while examining whether two premises separated from each other would constitute a factory under the provisions of Section 2(m) of Factories Act, held on the basis of the principle laid down by the Hon ble Madras High Court in the case of N.V. Radhiah and Bros. v. E.S.I. Corporation (AIR 1967 Madras 111), that a factory would normally be in one premises, including the precincts, or in different places within the compound, but there may be cases where the owner may run the factory in units located at different buildings at different places ..... X X X X Extracts X X X X X X X X Extracts X X X X
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