JAL PESTONJI MISTRY Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) The petitioner challenges the orders of the second respondent seeking a direction that the second respondent Tribunal should hear the petitioner's appeal afresh, taking into account the contentions raised by the petitioner in his written submissions which were filed before the respondent No.2.

(2.) In the petitioner's appeal before the Tribunal against the demand of Rs.52,63,999=43, the Tribunal held that the Collector had given detailed reasons for holding that the three units, namely, M/s Kinotone, M/s Cine Lamp and M/s International Talkie Equipment Company Pvt. Ltd. (all owned / controlled by one Adalja family, as stated in the Tribunal's order), were inter-connected and inter-linked and one Bharatbhai Adalja was having a major share of 80% in M/s Kinotone. It was observed that the petitioner - Jal Mistry was a paid Technical Director in M/s International Talkie Equipment Company Pvt. Ltd., which had three Adalja brothers as directors. It was noted that, most of the books of account, correspondence, files, stationary etc. of all the three units were maintained at one place, and that M/s Kinotone took loans from Adalja family who were associated with M/s Cine Lamp and M/s International Talkie Equipment Company Pvt. Ltd. For dismissing the appeal of the petitioner, the Tribunal simply observed; "M/s Kinotone has not advanced any satisfactory argument to dislodge the finding that they manufacture and clear complete cinema projectors without payment of duty. Hence the Adjudicating Authority has correctly clubbed the value of clearance of M/s Cine Lamp and M/s Kinotone and worked out the duty payable by M/s Kinotone after denying the benefit of small scale exemption. We, therefore, uphold the duty demand and penalty on M/s Kinotone".

(3.) The show cause notice dated 27/04/1980 was issued on these three units calling upon them to show cause to the Collector of Customs and Central Excise, Rajkot, as to why the duty of excise as mentioned therein in respect of the cinema projectors should not be recovered from them, and as to why penalty should not be imposed on these units under Rule 9(2) and 173Q(1) of the Central Excise Rules, 1944. The duty demand was confirmed in respect of the cinema projectors manufactured by M/s Kinotone on the ground that the benefit of exemption was not available to it since it was not an independent manufacturer, but inter-linked and inter-connected with M/s Cine Lamp, which manufactured Arc Lamps and M/s International Talkie Equipment Company Pvt. Ltd., which were controlled / owned by the Adalja family. A penalty of Rs.5 lakhs was imposed on M/s Kinotone and Rs.50,000=00 on M/s Cine Lamp. Penalty of Rs.1 lakh was also imposed on M/s International Talkie Equipment Company Pvt. Ltd. The appeal of M/s International Talkie Equipment Company Pvt. Ltd. was allowed earlier by the Tribunal and penalty imposed on them was set aside on the ground that the imposition of penalty was under Rule 209A of the Rules which was not invoked in the show cause notice.