9911796707
TMI Blog2001 (8) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... extile machines. Joy Silk Mills, Life Bond Fabrics Pvt. Ltd., Life Bond Sales Consultancy Pvt. Ltd., Contempra Sales Services Pvt. Ltd., bought parts of such machines from these manufactures who cleared them on payment of duty and sent them to Flamingo Machines Pvt. Ltd. This Company assembles these parts into complete textile machines such as twisting machines, uptwisters and looms. After assembly and testing, Flamingo Machines Pvt. Ltd., dismantles these into their constituent parts and returns them to these four units. These units in turn supply these parts, required for setting up of each machine to various buyers. The parts are assembled at site once again by Contempra Sales Services Pvt. Ltd. or by the buyers. All these six firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of value for assessment it does not determine who is the manufacturer. 4. The departmental representative first seeks to say that the manufacturing by Flamingo was on account of these four firms. This is in fact not the case either in the notice or in the order. The notice in fact does not clearly say there is assembly of the components by Flamingo into a complete machine resulting into emergence of such machines. No doubt, paragraph 5 of the notice cites the statement of Prafulbhai Patel, who is fitter of Flamingo, as follows : 5. It appears that the officers recorded the statement of Shri Prafulbhai Babubhai Patel fitter of Flaming Machines Pvt. Ltd., on 18-3-88 under Section 14 of the Central Excises and Salt Act, 1944, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclude from this that the parts become transformed into complete machines. We say perhaps, because there is no specific allegation in the notice that because of these acts they have been made into a complete machine. We have noted the contention of the Counsel for the appellants that Prafulbhai Patel s statement is capable of interpreting so as to believe assembly of parts. What has been done was to see tolerance of some of the parts when such parts were fitted into each other. We note that there is no allegation that complete machines were tested, etc., in the notice. 6. However, it is not really necessary for us to pursue this line of enquiry. In his order the Collector says that it is by the act of assembly of the parts into machine b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have an independent existence. That these units have a separate existence was acknowledged in paragraph 29 of the notice. It says that partners of Joy Silk Mills and directors of these five firms have got more than one factory of production. It refers again to Joy Silk Mills and associated firms . The notice demanded duty separately from each of these firms, proposed penalties, and refers to therefore engaging in the manufacture of excisable goods in collaboration with each other . It is only real entities that can be associated with each other or collaborate with each other. Collaboration by or with a non-existent entity is not possible. In his order the Collector does not go beyond this allegation. He says that the units could have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or manufacture of the goods and one who engages, in their production himself or by his own labour. It does not and cannot obviously include as manufacturer a person who supplies raw material to another for such transformation, for example, job worker. To accept the departmental representative s contention would mean that there could be no manufacture on job work. 10. It appears that the department has completely confused itself as to the nature of the relationship between the various parties and thereby possibly lost out. But, if so, the department has to blame itself. As far as this Tribunal is concerned the duty has been demanded from four persons who are not at all shown to be the manufacturer. Duty demand from them and penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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