Commissioner of C. Ex. and Cus. Vs. Purity Flexpack Ltd.

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person.....order1. the following question has been proposed for the admission of this appeal:whether or not respondent is entitled for cenvat credit at the higher rate paid on inputs, for which manufacturer of inputs on his own paid duty at the rate of 24% instead of 16%.?2. while considering the issue as to what extent cenvat credit can be availed in the accepted facts, the tribunal has considered as under:the respondents have made a prayer for decision on merits. accordingly, i have heard the ld. dr and have gone through the impugned order. the respondents took modvat credit of duty paid by the supplier on inputs and as reflected in the invoices. the revenue's contention is that the supplier should have paid 16% of duty as against 24% paid by them, in which case the respondents would have been entitled only to 16% rate of duty. however, no dispute has been initiated by the revenue at the supplier manufacturer of inputs end. it is a settled law that the duty paid by the manufacturer is eligible to be availed as modvat credit at receiver's end. the central excise authorities having jurisdiction over the manufacturer cannot dispute the duty liability of the inputs supplier and cannot restrict the credit on the ground that inputs manufacturer should have paid lesser amount of duty. the commissioner (appeals) has relied upon the earlier decision of the tribunal in the case of siddarth petro products v. commissioner of central excise reported in . i do not find any infirmity in the view taken by the commissioner (appeals). accordingly, i reject the appeals filed by the revenue.3. when the duty was paid by the supplier at the rate of 24% andadded in the cost, which has been paid by the assessee, we see no infirmity in the order of the tribunal allowing that part of duty for the purpose of cenvat credit.4. the appeal stands dismissed.