Judgment:
1. In both these appeals common question of law and facts are involved for disposal as per law.
2. In Appeal No. 2137/87-B, the Collector has confirmed the duty demand of Rs. 49,656.92 in respect of Electric Patty fittings that have been manufactured by the appellants under Tariff Item 68.
3. In Appeal No. 2138 /87-B, the Collector has confirmed an amount of Rs. 88,706.94 on Electric chokes and starters manufactured by the appellants under Tariff Item 61.
4. He admitted the fact in this case that the appellants were getting these goods from the independent manufacturers affixing the brand name "Bengal". The department has proceeded against the appellant in terms of Notification No. 305/77, dated 5-11-1977 they became the manufacturers of such goods and having failed to pay the duty by furnishing the relevant details under the Act, therefore, they are liable to pay the duty for the extended period from 1-7-1980 to 30-6-1983 in both the cases.
5. Arguing for the appellants, ld. Advocate states that there is no allegation made by the department against the independent manufacturers as dummy units. The department had admitted that the goods were manufactured by independent manufacturers but had proceeded on the premise that by merely affixing the trade name they would become manufacturers. Ld. Advocate submitted that the proposition on which the department has proceeded is not a sound proposition. In this regard, he relied on the judgment of the Hon'ble Supreme Court rendered in the case of Union of India and Ors. v. Cibatul Ltd. as reported in 1985 (22) E.L.T. 302 (SC). He brought to our notice a judgment rendered by Southern Region Bench in the case of Mysore Lamp Works Ltd. v.Collector of Central Excise as per order No. 446/87 wherein the department had proceeded against the said appellant on the same ground.
The tribunal set aside the order. He also relied on the judgments rendered in the case of Sidhosons v. Union of India as reported in AIR 1987 SC and in the case of Sidhosons and Anr. etc. etc. v. UOI and Ors.
etc. etc. as reported in 1986 (26) E.L.T. 881 (SC). He also cites the latest judgment of the Tribunal rendered in the case of Collector of Central Excise v. Western India Fabrication as reported in 1996 (66) ECR 53 (Tribunal), wherein the Tribunal has reiterated its earlier rulings. He submits that in this case the appellants have not supplied the raw materials but they have purchased the goods from independent manufacturers. He clarifies that the manufacturers themselves affixing brand name before supplying the goods.
7. We have carefully considered the submissions made by both the sides and have perused the records. In this case the admitted position is that the appellants have not manufactured the impugned goods. The goods were manufactured by the independent manufacturers and they had affixed the brand name "Bengal" and sold the goods to the appellants. The Collector proceeded in terms of Notification No. 305/77, dated 5-11-1977. There is no reason to come to the conclusion that the appellants become the manufacturers, by merely affixing the goods with the trade name "Bengal" by others as laid down in the citations referred to by the ld. Advocate. In that view of the matter, we hold that the impugned order is not sustainable in law and, therefore, we set aside the same by allowing the appeals.