9911796707
TMI Blog1991 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... units have been considered as one factory under the provisions of the Factories Act, 1949 and a licence was granted accordingly. The Refinery Unit refines/processes crude petroleum. Various products are obtained from such refining/processing including Low Sulphur Heavy Stock (hereinafter referred to as LSHS). The LSHS is used as fuel in the Xylene and Polyester Staple Fibre Units. There is no dispute that LSHS is classifiable under Chapter 27, Heading 2713.30 of the Central Excise Tariff Act, 1985 (hereinafter referred to as the said Act). 2. On 1st March, 1989 a Notification No. 28/89-C.E. was issued (hereinafter referred to the said Notification). The said notification provides as under : "Exemption to goods other than blended or compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Section 2(e) of the Central Excises and Salt Act, 1944. The Assistant Collector of Central Excise rejected the contention of the petitioner by an order dated 25th October, 1990 and upheld the demand in the show cause notice. The petitioner preferred an appeal from the said order before the Collector of Central Excise (Appeals), Calcutta and filed an application under Section 35F of the Central Excises and Salt Act, 1944 for waiver of pre-deposit of the amount claimed and for stay of realisation of the same. The petitioner's application was dismissed by the Collector by an order dated 30-4-1991. The petitioner has been required to deposit the entire amount within a fortnight of the receipt of the order. The appeal was fixed for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Collector appears to have assumed what was required to be decided viz., whether the Xylene Plant and PSF Plant were separate factories. It appears frem the written records of submissions that the petitioner had in fact, relied upon two decisions on the meaning of the word "Factory" in the Central Excises & Salt Act, 1944 namely, J.K. Synthetic Ltd. v. Collector of Central Excise, reported in 1991 (52) E.L.T. 116 (Tri.) and M/s. Sreeram Piston & Rings Ltd. v. Collector of Central Excise, reported in 1990 (48) E.L.T. 405 (Tri.). Neither of these two cases have even been considered by the Collector although in my view the said decisions would be relevant for the purpose of determining whether the petitioner had a prima facie case or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide plant takes the first step, while the acetylene gas plant takes the second step and the two combined produce the acetylene gas. Since there is no traverse by the respondents of the pleading of the petitioner that this movement taking place within the factory, the point of time at which the value of the product is to be determined under Section 4 is not reached. Consequently the question of levy and collection of the duty does not arise. (4) The expression "factory" is defined in Sec. 2(e) to mean any premises including the precincts thereof wherein or in any part of which excisable goods are manufactured. The definition covers the present case because the calcium carbide is manufactured in one part of the factory while the acetylene ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing the Collector of Central Excise (Appeals), Calcutta to re-hear the matter after giving the petitioner an opportunity of being heard and to dispose of the application for waiver of pre-deposit and stay of the order appealed against in the light of the observations in this judgment. The Collector will pass a speaking order and give his reasons while dealing with any authority cited. The Collector will also consider any question of financial hardship that may be raised. The Collector should dispose of such application expeditiously, preferrably within a period of eight weeks from date. Until the Collector hears and disposes of the said application of the petitioner for waiver of pre-deposit of the entire amount, the respondents will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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