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TMI Blog2005 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Notification. Appeal dismissed. - 2523-2529 of 2000 - - - Dated:- 20-4-2005 - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Judgment per : S.N. Variava, J.]. - These Appeals are filed against an Order dated 18th November, 1999 of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). 2.Briefly stated the facts are as follows. On 26th of July, 1988 one Vijay Oil Mill having its address at Majevadi Gate, Junagadh, addressed a letter to the Superintendent of Central Excise, Junagadh, wherein it was mentioned that they had entered into a lease agreement with the Appellants. It was mentioned that Vijay Oil Mill was supplying oil cakes to the factory of the Appellants and that the Appellants, who are holding a valid Central Excise Licence, would be undertaking manufacturing activities for and on their behalf, i.e., on behalf of Vijay Oil Mill. The letter mentioned that the Vijay Oil Mill was accordingly filing a declaration under Notification No. 305/77 dated 5th November, 1977. By the letter Vijay Oil Mill applied for exemption from licencing control and for permitting the Appellants to discharge all the excise liabilities and procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturers. The Appellants have accepted the authorization. They thus acknowledge that they are the actual manufacturer. 5.It must be mentioned that the parties also entered into a Lease Agreement which inter alia contained the following clauses :- "1. Any type of oil cakes of your purchase and production will be treated at the rate of Rs. 500.00 per one Metric Ton of 1000 Kgs. 2. The rates including the unloading of raw materials and the loading of the finished goods at our costs. 3. You have to pay minimum charge if you are not able to give us the sufficient raw materials to meet outstanding expenses whatsoever accrued during the year - on per year ending financial year. 4. Oils, other than solvent extracted oils, will be charge for refining at Rs. 700.00 per metric ton of oil." 6.This Lease Agreement also indicates that the Appellants have leased out the factory to Vijay Oil Mill, who would supply the oil cakes to the Appellants and the Appellants would produce at the rate of Rs. 500/- per metric ton of 1000 Kgs. (if the oil was a solvent extracted oil) and at the rate of Rs. 700/- per metric ton (for other oils). The rates include unloadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, Vijay Oil Mills had filed a declaration, which had been accepted by the Appellants, that the Appellants were the actual manufacturers. The Department had accepted this case. The Central Excise licence was held by the Appellants. The Appellants were the assessee who filed the classification list (as manufacturers) and claimed the benefit of the Notification (as manufacturers). 12.It now becomes necessary to consider the Notification. It reads as follows :- "In exercise of the Powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts fixed vegetable oils falling under sub-heading No. 1503.10 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said processed fixed vegetable oils) from the whole of the duty of excise leviable thereon which is specified in the said Schedule, subject to the following conditions, namely :- (i) the said processed fixed vegetable oil has been manufactured from fixed vegetable oils extracted by the solvent extraction method; (ii) the manufacturer shall maintain record regarding manufacture of the said processed fixed vegetable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower authorities including the Tribunal it was contended that Vijay Oil Mills were the manufacturers. This was a case contrary to facts and the authorization and declaration. This contention was not accepted by the Collector who rightly held that Vijay Oil Mills were getting the manufacturing done by engaging the Appellants as job workers. 14.It must be mentioned that even in the Appeal Memo it has been contended that Vijay Oil Mills are the manufacturers. Initially Mr. Lakshmikumaran argued on the footing that Vijay Oil Mills were the manufacturers. However, when the correct facts were noted, with this usual fairness, Mr. Lakshmikumaran admitted that the record depicted that Vijay Oil Mills were not the manufacturers. 15.Mr. Lakshmikumaran has submitted that Condition No. (iii) only requires a manufacturer, i.e. the Appellants, to produce a certificate to the effect that the processed vegetable oil had been manufactured from, fixed vegetable oils extracted by the solvent extraction method. He submitted that such certificates were produced by the Appellants. He submitted that the Appellants were not disentitled merely because the certificates mentioned that the fixed vegeta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cleared the goods. It was only in reply to the show cause notice that a contrary case was put up and confusion sought to be created. If the Appellants are actual manufacturers they can only get benefit of the Notification provided they have certificates from the Deputy Director of Vanaspati, Vegetable Oils and Fats showing that the vegetable oil produced by them has been manufactured from fixed vegetable oils extracted by the solvent extraction method. The Appellants do not have any such certificates. Certificates showing that Vijay Oil Mills have processed fixed vegetable oils are not sufficient. The Appellants were aware of this position. They thus contented that it was Vijay Oil Mill who manufactured the processed oil. Such a contention is rightly not accepted by the Collector and even by the Judicial Member. Undoubtedly, the third Member of the Tribunal appears to have accepted this case. However, it has been correctly held that Vijay Oil Mills would not be entitled to the benefit of the Notification as they do not have a licence under the Central Excise Act and do not comply with any of the formalities under the Central Excise Act. More importantly they are not paying any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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