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TMI Blog2010 (5) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... whether three different enterprises by name Kandhar Separators Industries, Jeet Enterprises and Hi-Tech Electronics Industries could be treated as the independent units for the purpose of levy of excise duty under the Central Excise Act, 1944 in relation to the goods namely KRC brand Accumulators manufactured at plant and machinery situated at the premises, B-103, Naraina Industrial Area, Phase-I, New Delhi owned by M/s. Kandhari Radio Corporation. 4. Few facts relevant for the decision are that pursuant to the information received by the department that Kandhari Radio Corporation is involved in manufacturing and clearance of accumulators without taking central excise registration and by evading the duty, the investigation was carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is in appeal against the same where as M/s. Hi-Tech Electronics Industries and Shri Avtar Singh are in appeal as far as Commissioner (Appeals) dismissed their appeals. 5. The Commissioner (Appeals) while allowing the appeals filed by M/s. Jeet Enterprises, M/s. Kandhari Separators Industries and Shri Avtar Singh has held that the evidence on record discloses that M/s. Kandhari Radio Corporation had the entire infrastructure, plant and machinery to manufacture accumulators but the other units did not have such infrastructure. Therefore, the goods are to be held as having been manufactured in a common factory premises and merely because the documentary materials disclose manufacture of the product by different units separately at the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Kandhari Radio Corporation and all the documentary material on record clearly reveal the separate identity and manufacture of goods independently by them. 7. Perusal of the records discloses that the Commissioner (Appeals) while upholding the contention of the assessees while dealing with the matters of M/s. Jeet Enterprises and Kandhari Separators Industries has clearly referred to the statement of Shri Avtar Singh. Shri Avtar Singh is undisputedly authorized signatory of all these firms. The statement discloses a clear admission on the part of Shri Avtar Singh that though the entire infrastructure, plant and machinery belongd to Kandhari Radio Corporation, the same was used independently by each of these units for manufacture of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 9. The statutory provision comprise in Section 2(f) of the said Act makes abundantly clear that to be a manufacturer one need not necessarily own the machinery. Even use of machinery of others for the purpose of production can qualify the person or firm to be a manufacturer within the meaning of the said expression under the said Act. It is pertinent to note that the adjudicating authority after taking note of the statement of Shri Avtar Singh in respect of formation of four different units to avail various benefits and thereafter trying to evade the duty by ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the Commissioner (Appeals) clearly travelled beyond the scope of show cause notice and erred in holding that liability in matter lies upon Kandhari Radio Corporation and not on the respondent-assessee. The order in that regard cannot be sustained. 11. For the reasons stated above, we find no infirmity in the order passed by the Additional Commissioner on the point of independent production by each of the units. The Commissioner (Appeals) was not justified in reducing the penalty. In the result, the appeals filed by the department succeed and the impugned order is hereby set aside and the order passed by the adjudicating authority is restored. The appeals filed by M/s. Hi-Tech Electronics Industries and Shri Avtar Singh are dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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