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TMI Blog1990 (1) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises addressed to the Superintendent of Central Excise. 9 To prove the shifting of the factory was duly intimated to the Department 4. Declarations filed with the Range Supdt. of Central Excise. 10-12 To prove bona fides and the quantum of the clearances made by M/s. Laxmi Enterprises. 5. Despatch advice and three enclosures thereto. 13-17 To prove that the consignments seiz ed at the premises M/s. Arya Central Transport of India Pvt. Ltd., belong ed to M/s. Laxmi Enterprises and was delivered by them to the trans port company along with KLN slips. 6. Stock Account of M/s. Laxmi Enterprises duly verified by the Deptt. 18-21 To prove that the stock was verified physically by the departmental officers and found in order and these were not lying in the premises of the Petitioners and this checking was done by surprise. 7. Monthly statements by M/s. Laxmi Enterprises submitted to the Deptt. from Feb., 1982 to July, 1982. 22-32 To prove that all the details of manufacture and clearances were being submitted to the Department regularly and nothing was concea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Collector of Central Excise, Bombay-II) - No additional evidence or new allegation may be submitted by a party at the Appellate Tribunal stage. (ii) Delhi High Court decision in 1987 (32) E.L.T. 53 (M/s. Gunvant and Others v. C.C.E. and Others). Additional evidence - It is well settled that additional evidence is not permissible even in an appeal to enable one of the parties to remove lacunae in presenting its case at the proper stage and to fill in gaps. 4. The ld. Advocate in reply has cited the following case laws on admission of additional evidence :- (i) Madras High Court - 1982 (51) STL 381. (ii) 1967 (63) ITR 32. (iii) 1988 (174) ITR 354 (M/s. Oswal Spinning Weaving Mills Ltd.) The Tribunal can entertain new additional points raised before it for the first time. 5. The additional documents that have been referred to in the Miscellaneous Application have been seen. Documents from Sl. Nos. 1 to 4 and 6 relate to verification of records and stock by the Department and also clearances by M/s. Laxmi Enterprises, these together with documents at Sl. Nos. 7 and 8 will be taken note of at the time of deciding the appeal. Having thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order in Para 21 states that he draws inference that sealing rubber rings fixed at the ends of the oil filter do not form part of the oil filter cartridges and fixing of rubber rings to the ends of the filter does not amount to manufacture. This is in the context that M/s. Laxmi Enterprises has no means of manufacturing oil filters. Therefore, the Collector has gone by assumptions whereas the statement of Mrs. Gita L.N. Shetty, partner of M/s. Laxmi Enterprises and Executive Director of M/s. K.L.N. Engineering Products Pvt. Ltd. has said that the assembly of the said filters was carried on in the premises of M/s. Laxmi Enterprises and M/s. ESGI Mfg. Co. were separate entities and M/s. K.L.N. Engg. Products Pvt. Ltd. have no interest in their business, that these were two separate legal entities were known to the Department, their production and clearances were furnished to the Department by way of monthly returns and the factory was visited by the Jurisdictional Officers. He relied on the following case laws in support of his argument :- (i) 1978 (2) E.L.T. (J 172) (S.C.) (M/s. Oudh Sugar Mills Ltd. v. U.O.I.). Findings based on inferences involving unwarr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or goods in crude form are not excisable goods . The ld. Advocate advanced the plea that the appellant had furnished to the Additional Collector the trade opinion from consumers and dealers which were ignored and the Addl. Collector had himself obtained the trade opinions in Paras 15.4 and 16 of his order. The following are the case laws which support his case :- (i) 1986 (25) E.L.T. 114 (T) = 1986 (7) ECR 428 (Cegat) (Ashish Co. Ors. v. The Collector of Customs). Words and expressions must be understood in the sense in which these are understood by the dealer and the consumer. That is the definitive index of legislative intention. (ii) 1988 (37) E.L.T. 474 (S.C.) = 1988 (18) ECC 352 (S.C.) [Collec tor of Customs v. M/s. Swastic Woollens (P) Ltd.]. Understanding in the opinion of those who deal with the goods in question is the safest guide . (iii) 1988 (33) E.L.T. 292 (Bom.) (U.O.I. v. Babubhai Nylchand Mehta) An adjudication officer is not a trader and he cannot exam-ine himself as a witness. He is not a person visiting the market every day to find out as to how the product is known in the market. (iv) 1988 (33) E.L.T. 373 (Tribunal) [Polestar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filter cartridges. Some of the stickers bearing K.L.N. marking were received by parties and the consignment of raw materials received in the name of M/s. Laxmi Enterprises were found to have been paid by cheque by M/s. K.L.N. Oil filter cartridges despatched to various customers were invoiced in the name of M/s. Laxmi Enterprises. Further, there has been a transfer of large amounts by M/s. Laxmi Enterprises to M/s. K.L.N. which is stated to be for labour charges paid towards the pleating and curing of oil filters undertaken by M/s. K.L.N. The report of the Department of Mechanical Engineering, Indian Institute of Science, Bangalore, clearly established that the rubber sealing rings provided on either ends of the filter cartridges do not form part of the oil filter cartridges. The opinion is given by an unbiased body. On the issue of limitation as contended by the ld. Advocate that there is no mention of suppression in the show cause notice, it was pointed out by the ld. SDR that no specific mention of suppression need be mentioned in the show cause notice, when the charge of suppression was narrated in detail in the show cause notice. He placed reliance in the case of M/s. H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one and the same has been upheld. 8. The submissions made by both the parties have been considered. The issue before us is whether M/s. K.L.N. Engineering Products (Pvt.) Ltd. have been clearing the oil filters manufactured by them through the two partnership firms to be within the exemption limit under Notification No. 80/80. The appellants contention is that semi-finished oil filters are sent to the two firms for fixing rings and disposing them. The Additional Collector in his findings has come to the conclusion that the oil filter cartridges were in fully manufactured condition when received from M/s. K L.N. and the process done at M/s. Laxmi Enterprises does not amount to manufacture. The process carried out by M/s. Laxmi Enterprises is to fix the rubber rings on either side of the end caps. The technical opinion from the Department of Mechanical Engineering, Indian Institute of Science, Bangalore, which states that the rubber sealing rings provided at either ends of the filter cartridges do not form part of the oil filter cartridges. As against this opinion the appellants have produced a certificate from a Consultancy and Tribology and from the All India Filter Manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten tion of the Addl. Collector that these are finished goods, which are identifiable appears to be plausible, and even if the appellants plead that these are semi-finished goods, it appears they have not followed the procedure set out in Rule 56B. Hence the clearances to these two firms have to be taken into account for the purpose of determining the value of clearances by M/s. K.L.N. Engineering Products (Pvt.) Ltd. 9. The ld. Advocate during the course of his arguments put forth the plea that clubbing of the clearances of partners was not correct and cited the decisions of the Tribunal, but, however, it is found that the two firms M/s. Laxmi Enterprises and M/s ESGI Mfg. Co. have been clearing the goods of M/s. K.L.N. Engg. Products (Pvt.) Ltd. under their invoices and several evidences wherein M/s. K.L.N. Engg. Products were found to finance the firms in the matter of paying freight charges, transfer of funds to their labour charges and products bearing the monogram of M/s. K.L.N. make it clear that these are not independent units but have been clearing the goods on behalf of M/s. K.L.N. Products. 10. As for the aspect of limitation, the Show Cause Notice does not mention t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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