TaxTMI 
TaxTMI 
2005 (12) TMI 177
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....ty amounts as shown in the respective Show Cause Notice for the period September, 1990 to July, 1993 (OIO No. 9/98, dated 22-10-98 in E/1686/1999) and from 4/90 to 8/90 (OIO No. 3/99, dated 15-3-99 in E/176/2000). As the issue is common in both these appeals, the appeals are taken up together for disposal as per law. 2. The respondent M/s. Campco contended that they had entered into an Agreement to manufacture the goods in terms laid down in the Agreement. Both are independent factories. M/s. Campco is a Co­operative Society and also engaged in the manufacture of goods independently in their own name as well as a job worker on behalf of M/s. Nestle India Ltd. They had their own factory with independent registration under the Factories Act and Sales Tax Act. The factory had a licenced capacity of 8800 MT per annum and investment of nearly Rs. 14 crores. M/s. Nestle India Ltd. is a multi-national company who had given on job work raw materials to M/s. Campco for manufacture and supply of Nestle Chocolates. Both are independent units and are not related. There is no flow back of funds and there is no mutuality of interest between each other. The relationship is on principal-to-....
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....nly a normal accounting practice. Normally, in any job-worker's bill raised for recovery of processing charges the excise duty paid by the job-worker on the value of the goods manufactured on job-work basis would also be mentioned. In the instant case, since Nestle had been paying such amounts in advance (even before the actual clearances by the job-worker) they are not shown in the processing charges bill. Further, in view of the payment which is in the nature of an advance/temporary loans, any outstanding amount at the end of the year which was not utilised for payment of excise duty by Campco would naturally be shown in the assets side of the Balance Sheet of Nestle as Miscellaneous advance, drawing conclusions that Nestle was the real manufacturer and that Campco was a dummy merely based on such instances of accomodative practices followed by Nestle is not correct and justified since such practices, as explained above, are otherwise found normal and had not in any way helped the investigation for invoking the related person concept. 9.4 Thus, I conclude that the justification in the show cause notice for treating Nestle as the real manufacture in respect of the transactions ....
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....he Central Excises Act, 1944. Here, there is no such substantiation done by the investigating officers against Campco. Hence, I hold that there is no necessity for adoption of Nestle selling price for the clearances of Nestle products manufactured at Campco on job work basis." 3. The findings recorded by the Commissioner in Paras 10 to 11 in O-I-O No. 3/99, dated 15-3-1999 (E/176/2000) is also reproduced herein below :- "10. I find this allegation not sustainable. Firstly, the investigating officers were alleging that for Nestle products manufactured at Campco, the Nestle price were to be adopted. But, surprisingly, alongwith the same arguments, they were also projecting the issue of commitment charges on semi-finished goods borne by Campco and sought to demand duty on the same. If Nestle prices were to be adopted, then the proposal for demand of duty on certain portion of commitment charges which were not included in the assessable value would not arise since the Nestle price itself would be an all inclusive price or rather 'Normal Price' under Section 4 of Central Excise Act, 1944. The proposal to invoke Nestle price as well as to levy duty on commitment charges cannot take....
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....are directly proportional to the quantity committed to be lifted by Nestle but such fact simply does not make it includible in the selling price. It is not clearly established in the Show cause notice that Nestle had made certain extra payments in the guise of commitment charges. Secondly, the investigation also had not proved with any evidences that part of the normal selling price due on the goods were being collected in the guise of commitment charges to reduce duty incidence. When the investigation is of the opinion that Nestle price is the real assessable value then there is no meaning in saying that commitment charges had not formed part of the value and duty discharged on the same. 11. Further, I find, there is also a proposal to demand duty of Rs. 552.75 on the shortage of 2 cases of R.D. Chocolates and Rs. 1,104.18 on the shortage of 4 cases of Bingo chocolates noticed by Superintendent of Central Excise, Hqrs. Preventive, Belgaum on 21-9-1992. The issue was under protracted correspondence for quite some time. Campco had admitted that the shortage of 2 cases were at partially packed stage (not a stage for entry in RG1), and that 4 cases of Bingo chocolates were diverted....
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....nbsp; CCE, Rajkot v. Sompura Ceramics - 2001 (130) E.L.T. 195 (Tri. - Del.) 2. CCE, Mumbai v. Maganlal Nandlal & Sons - 1999 (113) E.L.T. 597 (Tribunal) 7. The learned SDR submits that the appeal against M/s. Nestle India Ltd. was dismissed on time bar and the Revenue is in appeal before the High Court and, therefore, this ground should not be entertained. 8. On a careful consideration, we notice that the Revenue appeal against M/s. Nestle India Ltd. has been dismissed on time bar. The Tribunal, in the case of CCE, Mumbai v. Maganlal Nandlal & Sons case has held that when an appeal is filed by the department against only one firm without impleading the other two firms, then the appeal is not maintainable in an issue where clearance of all the three are proposed to be clubbed. In the case of CCE v. Sompura Ceramics, the appeal of the Revenue was dismissed on a similar ground. The Revenue had filed an appeal against a single unit. They were proceeding to club the clearances of more than one unit. The appeal against the other unit had been dismissed as barred by time. Therefore, in that situation also, the other appeal was dismissed as not mainta....