9911796707
TMI Blog2008 (6) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... the challenge is to the order signed on 23.5.1997 and dispatched to the petitioners on 19.9.1997. 3. The petitioner Company is a Private Limited Company and was incorporated in the year 1977. It commenced manufacture of Calcium Gluconate from the year 1977. It had a tie-up with M/s Sandoz India Ltd. 4. During the year 1979, the individual Directors of the petitioner company promoted another company called the Global Calcium India (Pvt.) Ltd. for the manufacture of Calcium Gluconate and Calcium Lactobionate with a tie-up with M/s Glaxo India Ltd. During 1991, they also started Calcitech India Pvt. Ltd. Which started manufacture of similar range of products for export. Although the three companies were Private Limited companies and are independent entities, the second respondent Department issued a show cause notice dated 06.7.1993 seeking to club the clearance of all the three units for the period 1992-93. This was under the premise that the subsequent two companies were dummies of the petitioner. Even though detailed replies were sent by all the three companies, the second respondent confirmed his order dated 18.7.1984 by treating all the three units as one and called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Miscellaneous Application and passing orders without reopening the case as contended by the learned Senior Counsel, Mr. P. Wilson, the learned ASGI took serious objection to take note of those submissions. He submitted that in so far as the proceedings of the Courts are concerned, they are final and this Court cannot go behind the order passed by the authorities. 10. Thereafter, the learned Senior Counsel referred to the order passed by the CEGAT, more particularly, paragraph No. 8 wherein the investigation by the Department was referred to as the basis for clubbing. The following eight points were noted from the investigation report as the basis for clubbing the units. (i) Mutual Financial assistance; (ii) Transfer of machinery from one unit to another (iii) Common effluent treatment plant; (iv) Common analytical lab (v) Diversion of orders for supply goods (vi) Common sales promotion and follow up (vii) Common Chairman for all the three units (viii) Common staff for all the three units 11. The learned Senior Counsel submitted that none of these criteria can either singly or collectively be a foolproof test for deciding the clubbing question. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of such factors among other, like composition of the partnership, existence of the factory, licence, nature of goods manufactured etc. (ii) Different firms will be treated as different manufacturers for the purpose of exemption limit. But if a firm consisting of certain partners say A, B C, has got more than one factory, all these factories should of course be combined. Limited companies whether public or private are separate entities distinct from the shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. (iii) If there are two firms with only some of the partners in common, each firm is entitled to separate exemption limit and hence the question of distributing the exemption may not arise. If one firm or individual owns several factories, he or it gets exemption only in respect of one lot and the manufacturer being only one entity there will be no question of distributing the exemption. (iv) Whether or not in the expression' by or on behalf of a manufacturer' the expression 'from one or more factories' is added, the effect would be the same if the manufacturer is also the same. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l founded and likewise, the view taken by the Commissioner, Central Excise. Accordingly, we allow both these appeals, set aside the order of the Tribunal passed on 7-6-2002 as well as the order passed by the Commissioner, Central Excise, New Delhi III on 28-9-2001 in both the appeals. In the light of the above, he prayed for setting aside the order of the CEGAT. 14. Per contra, Mr. P. Wilson, the learned ASGI submitted that the writ petition is not maintainable under Article 226 of the Constitution against the order of the CEGAT and the petitioner should have approached the Tribunal for making a reference to this Court. Apart from the preliminary objection, he took this Court through the order passed by the CEGAT and contended that the clubbing was done based upon a factual finding and such a finding of fact cannot be interfered lightly and, therefore, the writ petitions should be dismissed. He also placed reliance upon the averments made in the counter affidavit filed in both the writ petitions. 15. With reference to the preliminary objection, it must be stated that even in case of Tribunals constituted under Articles 323A and 323B of the Constitution, the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
