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TMI Blog2016 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. He has filed appeal against the order of the Commissioner (Appeals), who has set aside the Order-in-Original passed by Additional Commissioner of Central Excise, Belgaum. 3. The appellant is represented by learned Additional Commissioner (Departmental Representative) Shri Mohammed Yousuf. The appellant mainly argues that job worker viz., M/s. Ashok Bagi and Associates and the respondents namely M/s. Pilani Envirotech Pvt. Ltd. (PEPL) are related, whereas Commissioner (Appeals) held that job worker and respondents are not related. The appellant also argues that the clearances effected by the job worker viz., M/s. Ashok Bagi and Associates are actually by the respondents themselves, when Smt. N.A. Bagi, Director with the respondent-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hok Bagi and Associates:- a) CCE, Baroda vs. M.M. Khambhawala: 1996 (84) E.L.T. 161 (SC) b) Applied Industrial Products Pvt. Ltd. vs. CCE: 1992 (61) E.L.T. 364 (Kar.) c) AFL Pvt. Ltd. vs. CCE, Mumbai-II: 2013 (295) E.L.T. 211 (Tri.-Mumbai) d) Commissioner of Customs & Central Excise, Surat-I vs. Kalpana Silk Mills: 2011 (134) E.L.T. 373 (Tri-Mumbai). 4.1 The respondents in their reply (which is on record) to the show-cause notice dated 3.4.2006 also state that: "As much we are eligible for the full exemption upto Rs. 100 lakhs under the Notification No.8/2003-C.E. dated 1.3.2003, according to which there is no condition for registration, declaration or excise control necessary till the full exemption limit of Rs. 100 lakhs. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents is by one person only. The appellant has also emphasised that the Director in the respondent-company has admitted that the respondent and M/s. Ashok Bagi and Associates (job worker) are related. 5.2 However, the respondent s main argument is that they are not related and they are independent and job workers, M/s. Ashok Bagi and Associates are responsible for the clearances and the payment of Central Excise duty on such clearances. 5.3 We find that Order-in-Original dated 30.11.2006 (issued on 21.12.2006) passed by Additional Commissioner of Central Excise, Belgaum in para 15 has given inter alia the findings as follows: "15. In the instant case M/s. Ashok Bagi (& Associates) is said to be clearing the goods after manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one and the same. In this regard, they have cited Hon'ble Supreme Court's decision in the case of Ujagar Prints (supra). However, we find that after considering the original adjudicating authority s clear finding, where the admission of Smt. N.A. Bagi, Director of the respondent-company has been cited, concluding that they are not having distinct identities but one and the same, having common interest, the decision of the Hon'ble Supreme Court in the case of Ujagar Prints will not be applicable to the present facts. 5.4 The learned advocate for the respondents has also cited the decision of Hon'ble Supreme Court in the case of CCE, Baroda vs. M.M. Khambhatwalla (supra) but we find that this case concerns with the goods produced by househ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identities but one and the same concern having common interest. 5.6 It is to be noted that when the Department has been able to show evidence (which is an evident finding in the original adjudication order passed by Additional Commissioner) that actually respondents and job workers are one and the same, the decisions relied upon by the learned advocate would not be applicable to the facts on record concerning the respondents. It is to be noted that the facts on record cannot prove that the respondents are only mere traders, when the record and facts evidently indicate that they are manufacturers too and would be liable to pay duties of Central Excise for their manufacture(s). The decisions of Hon'ble Supreme Court in case of Shree Agency v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limit of Rs. 100 lakhs clearance was achieved. We are of the view that their plea of giving benefit of Notification No.8/2003 C.E. dated 1.3.2003 deserves acceptance and the liability of payment of duty for the subject goods has to be computed after granting the benefit of Notification No.8/2003-C.E. (supra).
7. In view of the above discussions, the appeal is allowed by way of remand to the original adjudicating authority, who will give the respondents the benefit of the Notification No.8/2003 and also give the respondents opportunity of personal hearing and then adjudicate afresh on their liability by following the discussions and conclusions arrived at by this Tribunal in para 6 & 6.1 above.
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