9911796707
TMI Blog1994 (2) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order of the Collector of Central Excise, Coimbatore dated 10-3-93. Since we propose to dispose of the appeal itself on a short point, we grant waiver of pre-deposit of duty and penalty, pending appeal. Appeal : 2. When the matter came up on 1-9-93, the appellants had prayed that the goods in respect of which duty has been demanded were covered by exemption Notifications 83/90, dated 20-3-90 as amended by Notification 156/90 and Notifications 45/92 and 58/92; and not 280/88, dated 12-11-1982 and pleaded that no duty is payable in terms of these notifications. The appellants pleaded that no doubt they had not taken this plea before the learned lower authority and being a question of law they may be permitted to take t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for a given amount by itself alone would not make them as manufacturer. In this connection he drew our attention to Para 20 of the impugned order wherein in the opening line the learned Collector has stated as under : "It is not my intention to say that the contract workers or the job workers would form an extended arm of M/s. Facit Asia Ltd. It is true that they are manufacturers to certain extent in so far as the assembly is concerned." He pleaded that it is settled law that the job workers, unless it can be shown that they are the extension of the appellants, have to be considered as independent manufacturers. He pleaded that the learned lower authority having held that the job worker were not an extension of the manufacturer was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n drew our attention to Paras 22 and 23 of the impugned order and pleaded that the job workers are more in the nature of hired labourers and therefore duty has been rightly demanded from the appellants. 4. We observe that the learned lower authority has held the appellants as the manufacturer, taking into consideration the relationship between them and their job workers, the nature of the operations and the control exercised by the appellants and also the statements recorded from the job workers. At the same time we find that there are some observations by the learned lower authority which appear to run counter to his own conclusions in regard to as to who is the manufacturer. The thrust of the learned lower authority's finding, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 4919.90. Inasmuch as the plea is regarding the application of a notification and there is no dispute as regard to the facts, nature of the goods involved, it is settled law that the legal plea can be made at any stage. We, therefore, permit the appellants to raise these grounds. Before going into the aspect of as to who is the manufacturer we would like to deal with the point regarding the applicability of the notifications to the goods in question. Exemption is claimed under Tariff Heading 96.03. This heading covers brooms and brushes and the Tariff heading reads as under : "96.03 Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand operated mechanical floor sweepers, not motorised, mops a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e leviable thereon under the said Schedule." We also find that Notification 83/90 as amended from time to time exempts all goods falling under Tariff Heading 96.03. The notifications cited supra therefore appear to apply to the paper bags, brushes manufactured by the appellants. Therefore, before going into the aspect of who is the manufacturer we hold that in the interests of justice the appellants' plea in regard to the application of this notification has to be considered inasmuch as the same was not urged before the learned lower authority and has been now urged before us, we hold that the matter has to be gone into afresh on this by the learned lower authority. We, therefore, set aside the impugned order and remand the matter to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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