H. Guru Instruments (P) Ltd. Vs. Collector of Central Excise - Court Judgment

Excerpt:
1. the appellants are aggrieved by the impugned orders in pursuance of which central excise duty amounting to rs. 57,688.27 has been demanded from them on scientific and industrial instruments manufactured by them through m/s. india electrodes and components ('iec' for short) and cleared unauthorisedly without payment of central excise duty. penalty of rs. 25,000/- has laso been imposed on them.2. we have heard both sides and have carefully considered their submissions and the record. the appellants pressed before us only the following two arguments: (1) since the appellants supplied only the raw materials and all manufacturing operations were performed by m/s. iec, m/s. i.e.c. were the manufacturers and not the appellants; and (2) the demand show cause 'notice issued on 24.2.1979 for the period 6.3.1975 to 17.1.1978 was time barred. as no allegation of fraud or suppression had been made in the show cause notice and hence the normal time limit of six months applied.3. we find from the order-in-appeal that the appellants had taken the first plea before the central board of excise and customs also on this point, paragraph '6' of the board's order-in-appeal reads as under: "when it was pointed out that the law in this regard has been settled by the judgment of the supreme court in shree agencies case (air 1972 sc. 78) the argument was not pursued".the plea has, however, been raised again before us. we observe that it is the admitted position by the appellants that they supplied cast aluminium cases, aluminium rods, mild steel rods, stainless steel rods, stainless steel brass and german silver components etc. to m/s. i.e.c.and m/s. i.e.c. manufactured therefrom scientific and industrial instruments, namely, non ferrous pressure gauges, stainless steel pressure guages, mercury-in-steel thermometers, vapour pressure thermometres etc. as per specifications of the appellants. the instruments so manufactured bore the brand name and i.s.i. mark of the appellants and they were marketed by the appellants just like similar other instruments manufactured in their own large scale factory. in the facts and circumstances of the case, the status of m/s. i.e.c. was no better than that of hired labour and in fact also they received only the job charges. section 2 (f) of the central excises and salt act, 1944 defines 'manufacture' and 'manufacturer' in the following terms: "manufacture" includes any process incidental or ancillary to the completion of a manufactured product; and and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account." according to the aforesaid definition, the lower authorities have held the appellants as manufacturers of the instruments which they got fabricated from m/s. i.e.g. we agree with the lower authorities. the case of the appellants is distinguishable from the usual brand name cases, such as those reported at: in the aforesaid supreme court cases, the brand name owners did not supply the raw materials or components. the manufacturing units used their own materials and they charged full commercial price for the articles manufactured by them. the brand name owners had the right of inspection and they could reject any part of the goods manufactured with their brand name which did not come up to their quality standard.these were the cases of manufacture and sale of on principal to principal basis. however, in the case before us, it is the appellants who were owners of the raw materials and components throughout and at the end they took away all the goods fabricated on their behalf by paying only the job charges to m/s. i.e.g. this was not the case of manufacture and sale on principal to principal basis but of one unit employing another unit on hired labour basis. to the facts of appellants' case, ratio of the supreme court judgments at (1) 1977 e.l.t. (j. 168) -shree agency v. s.k. bhattacharjee and ors..bajran gopi lal gajabi v. m.n. balkundri is applicable and they have to be held manufacturers of the instruments, which they got fabricated from m/s. i.e.g.4. the plea of limitation has been made by the appellants for the first time in the proceedings. however, since it is a legal plea, we have allowed it to be made. we have given our careful consideration to this plea. it is a settled position in law now that allegation of fraud or suppression need not be mentioned directly; it is enough if there is adequate material in the show cause notice from which such allegation can be inferred. we observe from the show cause notice in this case that there was no disclosure made by the appellants to the authorities that they were getting a part of their instruments manufactured through m/s. i.e.g. the evidence of four letters pleaded by them before the collector and the board has been rightly rejected by these authorities because neither the assistant collector nor the superintendent to whom these letters were said to have been addressed received any one of them. these letters has not been sent by registered post. there was no accountal in central excise records of the instruments manufactured by the appellants through m/s. i.e.g. nor any central excise duty was paid on their removal. the authorities came to know about the manufacture and clearance of these instruments only on receipt of intelligence in pursuance of which they visited the factories of the appellants and m/s. i.e.g., took charge of the appellants' private accounts and made further inquiries. the appellants themselves were a idrge scale manufacturer of similar instruments in their own factory and they were well aware that central excise duty was payable on them. from the facts of the case and the "conduct of the appellants, which have all been mentioned in the show cause notice, the conclusion is inescapable that the appellants were guilty of wilful suppression with a view to evading payment of duty on a part of their production of instruments which they got fabricated by employing another unit (m/s. i.e.g.) as hired labour.in the circumstances, the extended time limit of five years applied to their case and the show cause notice was not time barred.5. no other plea was taken before us by the appellants. in the light of our above discussion, we dismiss their appeal.

Judgment:
1. The appellants are aggrieved by the impugned orders in pursuance of which central excise duty amounting to Rs. 57,688.27 has been demanded from them on scientific and Industrial Instruments manufactured by them through M/s. India Electrodes and Components ('IEC' for short) and cleared unauthorisedly without payment of central excise duty. Penalty of Rs. 25,000/- has laso been imposed on them.

2. We have heard both sides and have carefully considered their submissions and the record. The appellants pressed before us only the following two arguments: (1) Since the appellants supplied only the raw materials and all manufacturing operations were performed by M/s. IEC, M/s. I.E.C. were the manufacturers and not the appellants; and (2) the demand show cause 'notice issued on 24.2.1979 for the period 6.3.1975 to 17.1.1978 was time barred. As no allegation of fraud or suppression had been made in the show cause notice and hence the normal time limit of six months applied.

3. We find from the order-in-appeal that the appellants had taken the first plea before the Central Board of Excise and Customs also On this point, paragraph '6' of the Board's order-in-appeal reads as under: "When it was pointed out that the law in this regard has been settled by the judgment of the Supreme Court in Shree Agencies case (AIR 1972 SC. 78) the argument was not pursued".

The plea has, however, been raised again before us. We observe that it is the admitted position by the appellants that they supplied cast Aluminium cases, Aluminium Rods, Mild Steel Rods, Stainless Steel rods, Stainless Steel Brass and German Silver components etc. to M/s. I.E.C.and M/s. I.E.C. manufactured therefrom scientific and Industrial Instruments, namely, non ferrous pressure gauges, Stainless Steel Pressure Guages, Mercury-in-Steel Thermometers, Vapour Pressure Thermometres etc. as per specifications of the appellants. The instruments so manufactured bore the brand name and I.S.I. mark of the appellants and they were marketed by the appellants just like similar other instruments manufactured in their own large scale factory. In the facts and circumstances of the case, the status of M/s. I.E.C. was no better than that of hired labour and in fact also they received only the job charges. Section 2 (f) of the Central Excises and Salt Act, 1944 defines 'Manufacture' and 'Manufacturer' in the following terms: "manufacture" includes any process incidental or ancillary to the completion of a manufactured product; and and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account." According to the aforesaid definition, the lower authorities have held the appellants as manufacturers of the instruments which they got fabricated from M/s. I.E.G. We agree with the lower authorities. The case of the appellants is distinguishable from the usual brand name cases, such as those reported at: In the aforesaid Supreme Court cases, the brand name owners did not supply the raw materials or components. The manufacturing units used their own materials and they charged full commercial price for the articles manufactured by them. The brand name owners had the right of inspection and they could reject any part of the goods manufactured with their brand name which did not come up to their quality standard.

These were the cases of manufacture and sale of on principal to principal basis. However, in the case before us, it is the appellants who were owners of the raw materials and components throughout and at the end they took away all the goods fabricated on their behalf by paying only the job charges to M/s. I.E.G. This was not the case of manufacture and sale on principal to principal basis but of one unit employing another unit on hired labour basis. To the facts of appellants' case, ratio of the Supreme Court judgments at (1) 1977 E.L.T. (J. 168) -Shree Agency v. S.K. Bhattacharjee and Ors..Bajran Gopi Lal Gajabi v. M.N. Balkundri is applicable and they have to be held manufacturers of the instruments, which they got fabricated from M/s. I.E.G.4. The plea of limitation has been made by the appellants for the first time in the proceedings. However, since it is a legal plea, we have allowed it to be made. We have given our careful consideration to this plea. It is a settled position in law now that allegation of fraud or suppression need not be mentioned directly; it is enough if there is adequate material in the show cause notice from which such allegation can be inferred. We observe from the show cause notice in this case that there was no disclosure made by the appellants to the authorities that they were getting a part of their instruments manufactured through M/s. I.E.G. The evidence of four letters pleaded by them before the Collector and the Board has been rightly rejected by these authorities because neither the Assistant Collector nor the Superintendent to whom these letters were said to have been addressed received any one of them. These letters has not been sent by registered post. There was no accountal in central excise records of the instruments manufactured by the appellants through M/s. I.E.G. nor any central excise duty was paid on their removal. The authorities came to know about the manufacture and clearance of these instruments only on receipt of Intelligence in pursuance of which they visited the factories of the appellants and M/s. I.E.G., took charge of the appellants' private accounts and made further inquiries. The appellants themselves were a Idrge scale manufacturer of similar instruments in their own factory and they were well aware that central excise duty was payable on them. From the facts of the case and the "conduct of the appellants, which have all been mentioned in the show cause notice, the conclusion is inescapable that the appellants were guilty of wilful suppression with a view to evading payment of duty on a part of their production of instruments which they got fabricated by employing another unit (M/s. I.E.G.) as hired labour.

In the circumstances, the extended time limit of five years applied to their case and the show cause notice was not time barred.

5. No other plea was taken before us by the appellants. In the light of our above discussion, we dismiss their appeal.