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TMI Blog1992 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... duly approved by the Rajasthan Industrial and Development Investment Corporation Limited, Jaipur (hereinafter referred to as the 'RICCO'), on 11-10-1989. Thereafter, the petitioner filed an application before the Supdt., Central Excise on 15-9-1989 for the grant of licence to manufacture copper wire of thickness as mentioned in the Schedule appended to the application which showed the address of the petitioner's unit as "A-14-A, 22 Godown, Jaipur." The site was inspected and after a thorough enquiry, a licence (Annexure-4) was issued under Rules, 174, and 178 of the Central Excise Rules, 1944 (hereinafter referred to as the 'Rules of 1944') wherein also, the location of the unit was specifically mentioned as "A-14-A, Industrial Estate, 22 Godown, Jaipur": The petitioner also applied for electric connection on 23-9-1989 to the Rajasthan State Electricity Board for giving a separate electric connection, which was allowed and a sanction letter was issued on 15-12-1989 but the connection could not be given and therefore, arrangements had been made by the neighbour for the consumption of electricity, by the unit of the petitioner. A sub-meter had been installed in the premises. The man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed on behalf of the respondents on 14-2-1991 wherein a preliminary objection has been raised that the writ petition is not maintainable against the show cause notice and should be dismissed on this ground alone. It has been submitted that the petitioner should submit the objections before the authority and if the authority passes an order against her, she has got an alternative remedy by way of filing an appeal under the provision of the Central Excises and Salt Act, 1944 (hereinafter referred to as the 'Act'). It has further been submitted that since there is an alternative remedy, the writ petition should not be entertained, more so when there are several disputed questions of fact. 4. On merits, it has been submitted that both the units M/s. Mani Sales and M/s. Tandon Brothers are situated at A-14, Industrial Estate, 22 Godown, Jaipur. They have common electric connection and the relation between the two concerns is so close that both the concerns belong to the same family. It is only a method of reducing one's liability to pay excise duty that the manufacture is being done in two units. The petitioner is using the same premises, management, office, labour and electric c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. After relying on a decision of this Court in M/s. Sikha Footwear v. C.C.E. (Writ Petitioner No. 4203/89 decided on 18-12-1990), it has further been held that there is no warrant for exercise of extraordinary jurisdiction of this Court at the stage of show cause notice or where the remedy of appeal or revision is available to the party concerned. 9. On the other hand, learned counsel for the petitioner has placed reliance on Laxmindra Theertha Swamiar v. Commissioner, Hindu Religious Endowments (AIR 1952 Madras 612) wherein it has been observed that a writ of prohibition lies to prevent any inferior tribunal from exceeding its jurisdiction or even from assuming a jurisdiction which does not vest in it under law. In deciding the question whether a writ of prohibition should be issued or not, the existence of an alternative remedy is, in our opinion, an irrelevant consideration when the complaint is that an inferior tribunal is exceeding its jurisdiction or is assuming a jurisdiction not vested in it by law. If the Tribunal is permitted to exercise that jurisdiction which is objected to, if it exercises it wrongly, the mischief would be done before the alternative remedy is avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further been placed on Hirday Narain v. I.T. Officer, Bareilly (AIR 1971 SC 33) wherein the petitioner filed a writ petition instead of availing the statutory remedy. The writ petition was entertained and was heard on merits. The Supreme Court held that the petition cannot thereafter be rejected on the ground that the statutory remedy was not availed of. 16. On merits, Mr. Kuhad, learned counsel for the petitioner has very vehemently submitted that merely because two concerns are owned by different members of the family, they cannot be held to be one establishment. In this connection, he has placed reliance on Khoja Lime Udyog v. R.P.F. Commissioner 1990 (1) RLR 130]. In Pratap Press v. Delhi Press Worker's Union (AIR 1960 SC 1213) it was observed that two units cannot be considered as forming one industrial unit merely because it is owned by the same person. 17. Reliance has also been placed on Shree Syntex v. Union of India and other [1989 (2) RLR 623] wherein it has been observed that if two units do not have any functional integrity and there is no evidence of unity of employment, unity of ownership does not by itself make them one establishment. 18. The case of Spring F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that though the partners were carrying the same business individually and separately, both cannot be regarded same or continuation of same business. 25. My attention has further been drawn to Jaswant Sugar Mills Ltd. v. Union of India [1981 (8) E.L.T. 177], and Majestic Trading House and Anr. v. Union of India Anr. [1990 (60) FLR 793] wherein Allahabad High Court (Hon'ble Shri K.C. Agrawal, as he then was) held that unless the mutual independence amongst the three units of the same owner is established, they cannot be held to be one. 26. Learned counsel for the petitioner has drawn my attention to the following cases in connection with the interpretation of the words 'related person', within the meaning of Section 4(4)(c) of the Central Excises and Salt Act, 1944. 27. Union of India and Others v. Atic Industries Ltd. [1984 (17) E.L.T. 323 (SC)] wherein it has been held that a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other and one company holding shares in another and also buying goods from such a company, the shareholder cannot be a related person. 28. Atic Industries Ltd., Bulsar v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case and the petitioner will have ample opportunity to prove that it is a separate unit before the excise authorities and if the excise authorities decide against it, she will have a right of appeal provided under the Act itself and therefore, no interference should be made at this stage. 35. I have given my thoughtful consideration to the whole matter and have also gone through the record of the case as well as the authorities relied by learned counsel for the parties at the bar. 36. The petitioner is a lady entrepreneur and has passed M.Com. She decided to start a unit for manufacture of copper wire and installed wire drawing machines in August, 1989 over a portion of the land taken on rent from M/s. Tandon Brothers; on a monthly rent of Rs. 715/-. The petitioner has filed a copy of the rent deed duly executed with the approval of the RIICO who had given the land on lease to M/s. Tandon Brothers. The petitioner also obtained a provisional certificate of registration from the Directorate of Industries, Jaipur and thereafter applied to the Supdt. Central Excise, for grant of a licence to manufacture copper wire of thickness entered into the Schedule attached with the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p or the situation of the two factories or because there are some common employees unless there is a clear and specific evidence that there is mutuality of business interest between the two units and that both have interest in the business of each other or they have common funding and financial flow-back. In the present case, the most important aspect about having common funding and financial flow-back is missing and therefore, to withdraw the assessment or club the clearances is wholly unjustified and illegal and without jurisdiction. Reference in this connection may be made to International Dyestuff Mfg. Co. v. Collector of Central Excise, Baroda [1991 (53) E.L.T. 85 (Tribunal) = (1991) 33 ECR 31]. The petitioner has asserted on oath that she had opened a separate bank account, she is hereself operating the same and obtained limits and that the impugned notice is conspicuously silent and there is no allegation worth the name that they have any common funding or financial flow-back. Mere blood relationship or sharing of staff, some temporary common employment, similarity of product is also not sufficient to draw an inference that the two units should be clubbed together. Since I h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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