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TMI Blog2014 (6) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... shok Prasad was proprietor of this firm. From 1-4-2008 onwards at the same location Appellant No. 3, came into existence in place of Appellant No. 2, Shri Ashok Prasad became partner in this firm. Even on the date of Search, there was no factory or even shed or infrastructure to carry out any activity whatsoever. Thus appellant No. 2 & 3 existed on paper and without any industrial activity and were only dummy units or units on paper. They were not even licenced/registered with excise. 3. From 1-4-1995, Appellant No. 1 became Job worker for Appellant No. 2 & 3 and started claiming exemption under Notifications 83/94-C.E., which is reproduced as under :- Job-work - Exemption to goods specified in the SSI Exemption Notification Nos. 8/2000-C.E., and 9/2000 C.E., if manufactured on job work basis. - In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods - (i) of the description specified in the Annexure to the notification of the Government of India in the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess, and the express "job worker" shall be construed accordingly. [Notification No. 83/94-C.E., dated 11-4-1994 as amended by Notifications No. 18/97,C.E., dated 10-4-1997; No. 39/97-C.E., dated 30-6-1997; No. 7/98- C.E., dated 2-6-1998, No. 18/99-C.E., dated 1-4-1999; No. 36/99-C.E., dated 26-8-1999 and No. 31/2000-C.E., dated 31-3-2000] 4. In this case, appellant No. l is the job worker and appellant No. 2/3 are suppliers of raw materials. Condition (a) in the said notification stipulates that the specified goods received from the job work shall be used in the factory of such supplier in relation to manufacture of specified goods. (Remaining part of the condition is not relevant). Thus after processing by the job worker, processed goods are required to be sent to the principal manufacturers (viz. appellant No. 2 and 3). Appellant No. 2/3 are required to use the goods received from Appellant No. l in manufacturing process. In this case, as per Revenue and Panchnama dated 17.08.1998 there is no factory of appellant No. 2 or 3 In fact ld. Advocate for all the three appellants did not dispute this fact. According to ld. Advocate no factory is required for further processing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2/3. 7. During the arguments ld. Advocate for appellant vehemently(and perhaps the only argument) argued that the undertaking as stipulated in condition, (b) of notifications were given by Appellant Nos. 2&3 and therefore duty can be demanded from them and not from Appellant No. 1. This contention may be acceptable in normal facts and circumstances, where supplier of raw material has factory and some processing is left to be carried out on the job worked goods. We are unable to accept this contention in the present case, for various reasons. First of all, there is no factory of appellant No. 2 & 3 as stipulated in condition (a) of the notification 83/94. This fact would be known to Appellant No. 1 being part of the trade. Further in this case appellants are connected in as much as Shri Ashok Prasad is partner or proprietor in all the three units (including two on paper) and appears to be managing the whole show. Appellant No. 1 has to be aware about non-existence of factory from day one. In fact, appellant No. 1 was, from 1991 onwards, manufacturing Sand Cores and supplying to M/s. Nagpur Alloy Casting Ltd. It is only when they were likely to cross SSI exemption limit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orkmen, power connection, storage facilities etc. - It was more so as in department had itself tacitly recognized both as separate entities when dispute about eligibility of credit was decided in favour of 'A' - Notifications No. 83/94-C.E, and 84/94-C.E., dated 11-4-1994, and Notification No. 214/86-C.E.,dated 25-3-1986. In this case principal manufacturer was having the machinery and was further processing. In the present case principal manufacturer has no machinery is undisputed fact. This case law is therefore not relevant to the present facts and circumstances of the case. The third case law is in respect of Suvikram Plastex (P) Ltd. v. Commissioner of C. Ex. Bangalore-III reported in 2008 (225) E.L.T. 282 (Tri-Bang). In this case Tribunal held that goods manufactured by appellant on job work basis from raw material received from principal manufacturer, and cleared back such manufactured goods to principal manufacturer or to other buyers as per their instructions - Appellants not availed any Cenvat/Modvat credit in respect of duty paid on raw material - Principal manufacturer, not the appellants, liable to discharge duty liability in respect of such goods irrespective of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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