ORDER
1. Respondents are not present inspite of notice. On hearing Shri B.B. Sarkar, I find that the law being well settled the appeal could be taken up for final disposal.
2. The respondents M/s. Kalpana Silk Mills are traders/ Certain man made fabrics were get processed from M/s. Luthra Dyeing. & Printing Mills. Some of such goods received by M/s. Kalpana Silk Mills were admittedly cleared without payment of duty by the job worker. These goods were seized. They Dy. Commissioner confiscated the offending goods but permitted their redemption on payment of fine. He noted that pending adjudication the offending goods had been released in terms of a bond by M/s. Kalpana Silk Mills, given cash security as well having paid the duty leviable. He adjusted the fine and also adjusted the deposit of Rs 1,49,396/- made towards the duty under Rule 9(2) of the Central Excise Rules, 1944 read wit provisions of Section 11A of the Central Excise Act, 1944. He imposed penalties on the job workers and on the trader. The trader then filed an appeal. The Commissioner (Appeals) upheld the confiscation, reduced the fine and confirmed the penalties, but vacated the confirmation of duty. In doing so, he held that a trader was not a person who was concerned with the payment of duty, referring of the Supreme Court judgment in the case of Ujagar Prints as also in the case of Empire Industries Limited. He also extracted the observation of the Supreme Court that even if the job workers are not the owners, they are the manufacturer of the goods. Against this order the present appeal has been filed.
3. Emphasis is placed on notification 27/92. The claim is that if there are lack of fulfilment of any condition by the job workers in terms of the notification then the fulfilment is to be done by the trader. Supreme Court judgment in the case of Bajrang Gopilal Vs. M.N. Balbhandari 1986 ELT 609 is cited in support of this claim.
4. I have considered the submissions made by Shri Sarkar.
5. Notification 27/92 exempts from the regours of registration under Rule 174 of the Rules, traders getting their goods manufactured from job workers. A similar provision earlier existed in the form of notification 305/77. This notification was rescinded some tme in 1990 but was revived in the present from thereafter. As far as the processing of gray cloth is concerned this notification would cease to have any effect or authority as regards the traders who give gray fabrics to processing houses, because in the face of the judgment cited by the learned Commissioner it would be legally impossible to continue to call traders as manufacturers.
6. I have seen the cited judgment. Although it does not made any reference to the judgment in Shree Agencies’ case, it is on similar lines. This judgment would cease to have any operable ratio after the pronouncement of the Ujagar Prints Judgment.
7. The Commissioner (Appeals) has extracted in the judgment those provisions which lay the responsibility to pay the duty on a particular person namely the “manufacture”. Since a trader does not fall under that category the liability to pay the duty cannot be fastened upon him.
8. There is a provision in the Central Excise Act, 1944 in the form of Section 12 where certain provisions of the Customs Act, 1962 can be made applicable in certain conditions to matters arising under the Central Excise Act, 1944. I have seen notification No. 68/63-CE dated 04/05/1963 as amended. The provision of Section 125(2) of the Customs Act, 1962 have not been brought into the Central Excise Act. If it had been done, then perhaps the burden to pay the duty could have been made as corollary to the redemption of the goods and perhaps the requirement of only the manufacturer having to discharge the burden of duties could have been overcome. In the absence of any such machinery there is no legal liability on a trader to pay the duty short paid by the process job worker. The Commissioner (Appeals) order sustains.
9. The appeal is dismissed.