9911796707
TMI Blog1997 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ills namely brass tips was got manufactured by them from seven Private Limited Companies on job work basis. The job workers were operating as Small Sector Industries. They were also buying such tips on outright basis from another manufacturer. M/s. Nalanda Pen Mfg. Co. Pvt. Ltd., were filing classification lists from time to time. The job workers in the Small Sector Industries were exempted from licencing control having filed the requisite declarations from time to time in which the goods manufactured were declared as Brass tips of the ball point pens and benefit of Notification No. 74/86 as amended by another notification was claimed for their duty free clearances. The classification of such goods was shown under sub-heading 9608.00. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lakhs each on the three Directors. He ordered confiscation of land, building etc. but permitted their redemption on payment of fine of Rs. 25,000/-. The Assessee Company and three Directors have filed separate appeals against this order. These four appeals are, therefore, taken up by us for disposal by this common order. 4. Shri J.J. Bhatt, Senior Advocate, appeared for all four appellants along with Shri S.S. Kalambi, Advocate. Arguing on merits Shri Bhatt claimed that brass tips were part of refills and refills were part of ball point pens. In this way, brass tips were part of parts. He relied upon the judgment of the Tribunal in the case of Collector of Central Excise v. Mahendra Engg. Works - 1993 (67) E.L.T. 134 in which the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar to the imported tips would also benefit from Serial No. 6 of the Schedule to Notification No. 234/82. He referred to the identical reply of the Jurisdictional Assistant Collector dated 11-2-1985 in which the following paragraph occurred : I am to inform you that the Tips for refills for ball point pens are considered to be parts of the ball point pens and is covered by the entry 6 of the Schedule appended to Notification No. 234/82-C.E., dated 1-11-1982 as amended. He stated that this stand of the department was unchanged upto the time of issue of Notification No. 156/90. It is his claim that allegation made in the show cause notice that such brass tips for refills were not covered under the earlier notifications during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Appellant Company in order to show that such division was made only to evade payment of duty. The learned Advocate claims that at all times the job workers were independent units and in the absence of any allegation made in the show cause notice the Collector s action of holding the present assessees as Manufacturers of the brass tips was wrong. 6. Learned Advocate also claimed that the demand suffered from limitation. Although in the show cause notice a specific allegation was made, the department at all times was aware that job workers were manufacturing tips and the claims of the job workers for benefit of the notification was accepted and allowed by the Departmental Officers from year to year. It was his claim that all these j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions made in the impugned order have brought out the fact that these units were created as colourable devices and that the relationship bet- ween 8 units and the Appellants/assessees were not at arm s length. Therefore, in this case, the principal Manufacturers i.e., Appellants/assessees was correctly taken to be the manufacturers of such tips. As such they were required to declare the factum of their manufacturing such tips in the C.Ls. which they have not done. On this count, he defended the impugned order. 9. We have carefully considered the rival submissions and have perused the judgments and the notifications cited by the appellants. 10. It is correct that what was exempted by the notifications current during the period covered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeed on merit, it is not necessary for us to go about the question as to whether actual manufacturers were the job workers or whether the present Appellant Company should be held to be actual manufacturers. This is because in either case the benefit of the notifications being available the question of short levy of duty would not occur. For the same reason, there is no necessity for our going into the aspect of demand being hit by limitation. 12. Since the appeal of the Appellant Company succeeds on merit, the appeals filed by the individual Directors would also succeed. 13. In the result, we allow all the four appeals, set aside the orders of the Collector and order consequential relief to the extent warranted. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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