Raju DECISION
Raju, Member (T)
1. This Appeal has been filed by M/S Orion Steel Corporation and Suryakant C Patel against confirmation of demand of Central excise, Interest and Imposition of Penalty.
2. Learned Counsel for the appellant submits that the appellant company is engaged in manufacture of welding electrodes on job work basis. He pointed out that these electrodes carried the brand name ("Sun Arc") which belonged to the appellant. He submits that the case of the department is that the electrodes manufactured by M/S Orion Wire Manufacturing Company bear the brand name of the appellant's company, Clearance of such welding electrodes have to be included in the aggregate clearances of the appellant for the purpose of Notification No. 8/2003 -CE. The demand of duty has been calculated in the above manner by including the value of clearance of the goods manufactured by M/S Orion Wire Manufacturing Company in the total clearances of the appellant.
2.1. Learned Counsel pointed out that the appellant had sent raw materials to M/S Orion Wire Manufacturing Company for manufacturing welding electrodes on job work basis and the electrodes manufactured by Orion Wire Manufacturing Company were cleared on payment of Central Excise duty from the premises of M/s. Orion Wire Manufacturing Company. He pointed out that there is no dispute that M/s. Orion Wire Manufacturing Company is not a dummy Company. It is not in dispute that M/s. Orion Wire Manufacturing Company is actually manufacturing these electrodes as all the facilities for such manufacture.
2.2. Learned Counsel argued that in this background, it is apparent that allegation of department that the aggregate clearances should include the clearances made by M/s. Orion Wire Manufacturing Company that is without any basis. Learned Counsel relied on the decision of tribunal in the case of ARIHANT UDHYOG-MANU/CM/0387/2018 : 2018 (363) ELT 924 wherein, the tribunal held that duty liability would always arise on the end of job worker as job worker is manufacturer even when the work is done on job work basis. He argued that if the decision held that the person who gives the contract to the job worker for undertaking job work cannot be liable to pay duty even if SSI Exemption is not admissible. While holding so the tribunal in the case of THERMAX BABCOCK & WILCOX- MANU/CM/0947/2017 : 2018 (364) ELT 945. Learned Counsel pointed out that similar observation has been made by the tribunal in the case of M/S HITACHI MANUFACTURING COMPANY-MANU/CK/0105/2017 : 2017 (358) ELT 1136 and also in the case of M/S REDICURA PHARMACEUTICALS PVT. LTD-MANU/CE/0580/2015 : 2015 326 ELT 379. Similar view has also been expressed by tribunal in the case of M/S SUPREME TANK PVT. LTD. and M/S PRIME INDUS. VALVES MANUFACTURING COMPANY reported in 2014 (314) ELT 725 and 2008 (221) ELT 255 respectively. Learned Counsel argued that in all these cases of common thread advances by the value of goods manufactured by the job workers cannot be included in the value of goods cleared by the principle for the purpose of SSI Exemption.
2.3. Learned Counsel pointed out that the issue is barred by limitation as appellant has filed declaration in the year 1999 and investigation is conducted 4 Years be........