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TMI Blog2004 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ng denial of SSI benefit for the period July to December, 1994 and this was followed by 8 periodical show cause notices covering the period up to September 1998 on the same issue. The notices were adjudicated by the Asstt. Commissioner of Central Excise vide order dated 29-9-2000, denying the benefit of SSI exemption and holding that pre-mixes of coffee/tea/soup are excisable and classifiable under CET sub-headings 2101.10, 2101.20 and 2104.10 respectively. The benefit of Modvat credit for the relevant period was also denied and a demand for Rs. 91,92,183/- was confirmed and a penalty of Rs. 10,000/- in respect of each show cause notice, totaling Rs. 90,000/- was imposed. The Commissioner (Appeals) vide his Order-in-Appeal, dated 23-2-2001, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of SSI concessions in terms of the Notfn. No. 1/93, dt. 28-2-93, as amended ? (ii) Whether the process of mere mixing of duty-paid coffee powder/ tea powder with duty-paid sugar and duty-paid whitener to make pre-mix coffee/pre-mix tea and mere mixing of chocolate powder with sugar and skimmed milk to make drinking chocolate, would amount to manufacture in terms of Section 2(f) of the Central Excise Act, 1944 ? 3. Our findings are recorded hereunder :- Issue No. 1 : According to the ld. SDR, this issue stands answered in favour of the Revenue by the Larger Bench decision in the case of Namtech Systems Limited v. CCE, New Delhi - 2000 (115) E.L.T. 238 - wherein it has been held that where a manufacturer affixes the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch may be by agreement, to share both in profit and losses. (Black's Law Dictionary, 6th Edn., p. 839). According to Words and Phrases, Permanent Edn., a Joint Venture is an association of two or more persons to carry out a single business enterprise for profit (p. 117, Vol. 23). A Joint Venture can take the form of a corporation wherein two or more persons or companies may join together. A Joint Venture Corporation has been defined as a Corporation which has joined with other individuals or Corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields. (Black's Law Dictionary, 6th Edn., P. 342) Joint Venture Companies are now being increasingly formed in relation to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... base management, sales and publishing of its parent group Companies. It would thus appear that the Indian Group of Companies (TPI, LMI and WML) and the Singapore-based Company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organization at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of Companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Refrigerator Transit Co. : "When the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons." 4. Applying the above ratio, the respondents have to be held as a Single Economic Entity constituted by the Indian company and the Foreign company and therefore the use of the brand "Fountain" does not amount to use of the brand name of another person. We also note that the brand "Fountain" has been registered by the respondents in India and the Joint Venture Company has become the owner of the brand and obtained non-transferable exclusive rights of using the brand in India, as seen from the agreement. We note that the Larger Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-mix coffee/tea as coffee/tea. The burden of showing that the particular process amounts to manufacture is cast upon the Revenue, as held by the Apex Court in the case of CCE, Chandigarh v. Markfed Vanaspati Allied Inds. [2003 (153) E.L.T. 491 (S.C.)] and the burden has not been discharged by the Revenue authorities in the present case. The Trade parlance test which is also held to be relevant by the Apex Court in the case of Union of India v. Parle Products Pvt. Ltd. [1994 (74) E.L.T. 492 (S.C.)] also brings out that the pre-mix coffee/tea is known and sold as coffee/tea only. Since there is no change in the essential character of the products in dispute, applying the ratio laid down by the Tribunal in the cases of Laljee Godhoo Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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