Customs, Excise and Gold Tribunal - Mumbai
Special Board Mfg. Co. vs Commissioner Of Central Excise And ... on 19 June, 2001
Equivalent citations: 2002(146)ELT85(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Special Board Mfg. Co., the appellant before us, was initially constituted as a partnership firm. For the period from 1st April to 30th November, 1992, it availed of the benefit of notification 175/86. The partnership dissolved on 1st December, 1992 and its business was taken over by Indo Colchem Ltd. as a proprietor. It filed on this date a classification list claiming benefit of exemption under notification 138/86. This was done because while the benefit under notification 175/86 would no longer be available, as Indo Colchem did not satisfy the criteria specified in that notification. Notice was issued do Special Board Mfg. Co. alleging that both these notifications could not be claimed in the course of one financial year. The notice also proposed independently that clause (v) of the proviso under the first paragraph of notification 138/86 excluded any manufacturer who avails exemption under notification 175/86. Duty was accordingly demanded. The Assistant Collector accepted the contention of the assessee and dropped the proceeding. On appeal of the order, the Commissioner (Appeals) set aside the order of the Assistant Collector and allowed the department's appeal. Hence this appeal by the assessee.
2. The order of the Commissioner (Appeal) says, in effect, that there has been no change in the legal identity of the partnership firm because, he said, it continued to function in the same premises and to manufacture the same products. This proposition is clearly untenable. As a result of the dissolution of the partnership, the partnership firm ceased to exist. The goods manufactured in the factory that belonged to the partnership firm were therefore manufactured by Indo Colchem. Strictly speaking Special Board Mfg. Co. ceased to exist after 30.11.1992. It is not merely a simple change in the registration but a complete change in the legal identity.
3. The argument that the departmental representative advances, with regard to paragraph 3 of the notification 175/86 is entirely irrelevant. That paragraph provides that the benefit of that notification (175/86) will not be available in the case inter alia of clearance of goods exceeding Rs. 2 crores from any factory by more than one manufacturer. The argument is entirely irrelevant because we are not concerned with the applicability of notification 175/86. The other argument that he advances rests upon the provisions of clause (v) of the proviso under the first paragraph of notification 138/86. It says, "The exemption contained in this notification shall not apply to a manufacturer of paper or paperboards who avails of the exemption under notification 175/86". This, according to us, means that it is not permissible for a manufacturer to avail both notifications 175/86 and 138/86 simultaneously. This is not the case before us. Further, the manufacturer who claimed the benefit of notification 138/86 did not at the same time claim the benefit of notification 175/86.
4. We accordingly allow this appeal, set aside the Commissioner (Appeal)'s order and restore the Assistant Collector's order.