9911796707
TMI Blog1994 (3) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... at order of the Assistant Collector the Revenue filed the appeal (application in Form E.A. III) before the Collector of Central Excise (Appeals), Bombay, who vide his order-in-appeal No. ADN/66/91/B-III dated 22-8-1991 set aside the order of the Assistant Collector and allowed the appeal holding that the present appellants M/s. Aroon Phospho Products (P) Ltd. has no locus standi to claim the exemption under the said Notification, though, they may have taken over assests and liabilities of the dissolved firm and alternatively since the factory was not registered as SSI with the Director of Industries as required under para 4, it could avail exemption under sub-clause (a) of para 4, provided the clearance value did not exceed Rs. 7.5 lakhs for the whole year. But in the instant case the appellant company had cleared goods valued more than Rs. 7.5 lakhs during 1988-89, they were not entitled to the full benefit under the said Notification. Hence the present appeal No. E/5568/91-C. 3. It appears that the appellants also filed their classification list No. 1/90-91 effective from 2-4-1990 that is to say for the subsequent period claiming the benefit of Notification No. 175/86 dated 1-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deny the benefit of the said exemption Notification No. 175/86-C.E. alleging that the appellants company did not fulfil the conditions stipulated in para 4(a) or 4(b) and ultimately the benefit has been denied to the appellants. In this premises he submitted that the only small issue involved in the present appeals is as to whether the benefit under exemption Notification No. 175/86-CE availed by the Partnership firm M/s. Aroon Enterprises can be continued to the appellants company when they have taken over the entire factory of the Partnership concern, namely, M/s. Aroon Enterprises along with the assests and liabilities, including the factory premises. Continuing further he submitted that the said issue stands already decided by this Tribunal in the case of Lucky Tractors v. CCE, Bombay, 1987 (29) E.L.T. 638 wherein it was held that `factory relates to place of manufacture and not manufacturer. Therefore, the findings of the Collector (Appeals) in his impugned Order-in-Appeal No. 66 dated 22-8-1991 (which is the subject matter of Appeal No. E/5568/91-C) that the appellants company has no locus standi to claim the exemption are patently wrong in as much as with the taking over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Industries in any State or the Development Commissioner (Small Scale Industries) as a small scale industry under the provisions of the Industries (Development and Regulations) Act, 1951. However, its Proviso (a) provides that such SSI registration is not necessary in a case where the value of clearances from a factory during the preceding financial year or in the current financial year did not exceed or is not likely to exceed rupees seven and a half lakhs; or in a case where the manufacturer who is manufacturing specified goods in a factory, other than a factory which is registered under the Industries (Development Regulations) Act, 1951 with the Directorate General of Technical Development in the Ministry of Industry, and has been availing of the exemption under this notification during the preceding financial year (Clause (b) of the Proviso). However, there is a further proviso to Clause (b) which provided that nothing contained in the said Clause (b) shall apply where a manufacturer who is manufacturing specified goods in a factory which is registered under the said Act with the Directorate General of Technical Development and has availed of the exemption under this No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a partnership firm, it is the firm which has to be treated as `manufacturer under Central Excise Act and not its partners. See G.D. Industrial Engineers v. Collector of Customs Central Excise, Chandigarh, 1983 (14) E.L.T. 1994. Likewise, merely because some Directors of the company are also partners in a partnership firm, it does not make them one manufacturer. See Meteor Satellite Ltd. Telstar Electronics v. Collector of Central Excise, Baroda, 1985 (22) E.L.T. 271. Therefore, the fact that Shri D.B. Sanghani, Director of and on behalf of the appellants company joined the said partnership firm, namely, M/s. Aroon Enterprises, with effect from, 14th July, 1988 does not change the complex of the case, that is to say, the said M/s. Aroon Enterprises, a partnership firm, remains a partnership firm independently having a separate legal entity. From the admitted fact on the record, it is clear that, the licence was granted to the said partnership firm of M/s. Aroon Enterprises and according to sub-rule (2) of Rule 178 of the Central Excise Rules, 1944 such licence shall be deemed to have been granted or renewed personally to the licensee and further that no such licence shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art, it is agreed by and between the parties with mutual consent to allot paid up shares of Rs. 10/- each equivalent to the capital standing at their credit on day of dissolution in the company M/s. Aroon Phospho Products Pvt. Ltd. 5....................................... 6...................................... 7....................................... 8. The parties hereto release the other respectively from all actions, accounts claims and demands in connection with the said partnership hereby dissolved as aforesaid and from all assets, conveyances, agreements, matters or things under the said deed of partnership dated 14th July, 1988." 14. From the above it is also clear that after agreeing to dissolve the Firm all the three Partners settled the accounts of the Partnership Firm and the assets and liabilities of the Partnership were drawn. After drawing so one of the partners, namely, D.B. Sanghani took over the running business of the Partnership Firm with all its assets and liabilities towards his share and the remaining two partners took their share in the form of the allotted paid up shares as described in Dissolution Deed and severed their connection from the Partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year or in a case where the unit is not registered with the DGTD or has availed of the exemption under this Notification during the financial year 1986-87 and the aggregate value of clearances of all excisable goods during the financial years 1987-88 and 1988-89 did not exceed Rs. 150 lakhs. Therefore, the question is whether the appellants company are the manufacturer who had availed of the exemption under this Notification during the preceding financial year because the former partnership concern, that is to say, M/s. Aroon Enterprises had availed the same till its dissolution on 20-8-1988. Both the Collector (Appeals) have held that since the original manufacturing firm M/s. Aroon Enterprises was dissolved on 20-8-1988, all the benefits enjoyed by this manufacturer ceased to be effective, and therefore, the appellants company cannot avail the benefit under the said exemption Notification. We are in complete agreement with these findings since all the benefits and privileges available to the former partnership concern M/s. Aroon Enterprises lapsed with the dissolution on 20-8-1988 being of personal nature and not capable of being sold or transferred in terms of Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
