1984 (3) TMI 72

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....ian Partnership Act and are engaged in the activity of manufacturing metal containers. According to the appellants, they started manufacturing metal containers in the year 1974. On 30th December, 1976 they surrendered their licence and switched over to manufacture of metal containers without the aid of power so as to be eligible to the exemption under Tariff Notification No. 94 of 1970, dated 1st May, 1970. 3. It is alleged that on 27th November, 1980, the seaming machine lying in the factory of the appellants was jammed and therefore a technician Shri Amar Singh Yoddha was called in to remove the jam. This technician advised that the jam could be removed only by giving a jerk by coupling the machine with an electric motor and therefore ....

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....order passed by the Collector, Central Excise, Baroda. 5. The appellants approached the High Court of Gujarat by way of a special civil application but the High Court by its order dated 29-6-1984 rejected it as non-maintainable and hence the present appeal with special leave obtained from this Court. 6. It is not disputed that the Notification No. 94/70-C.E., dated 1-5-1970 provided that the manufacture of metal containers falling under Item 46 for which no process is ordinarily carried on with the aid of power is exempted from whole of the duty of excise leviable thereupon. It is also not disputed that the appellants' manufacturing shed has no power connection but there was a power connection in the adjacent shed of a sister concern ....

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....er was used ordinarily for manufacture as it was conceded that even for a 2-H.P. motor the consumption will be more than 2 units per hour. 8. Looking to the statement of power consumption of M/s. P.G. Orcham and comparing this with the production of the appellants there appears to be no justification for drawing an inference that during the period May 1979 to November 1980 the power shown to have been consumed by M/s. P.G. Orcham was in fact utilised by the appellants for manufacture of metal containers. A perusal of the chart showing production shows that in some months like December, 1979 when the power consumption is shown to be zero, the production was highest and on a perusal of the statement of production when compared with the pow....