Case: Assistant Collector of Central Excise And Customs Vs. J.C. Shah

he respondents in the three appeals claimed that the artificial silk fabrics which they produced or manufactured were produced or manufactured in factories owned by them in which less than 25 powerlooms are installed. This plea has been rejected by the tax authorities and notices were issued against them calling upon them to pay the duty at the rate prescribed by Item 12A. The validity of the notices thus issued against them was challenged by the respondents by their writ petitions filed in the Bombay High Court under Articles 226 and 227 of the Constitution. The writ petition filed by J.C. Shah who is the respondent in Civil Appeal No. 394 of 1962, first came to be considered and decided by the said High Court, and the said High Court allowed his writ petition and directed that the order passed by the Assistant Collector of Excise and Customs holding that the respondent was liable to pay the duty in question should be quashed. The High Court has also quashed the notice of demand issued against the respondent on the 30th October, 1957. The amount sought to be recovered from the respondent is Rs. 10,954/80 nP. The two other writ petitions filed by the respondents in civil appeal Nos. 395 and 396/1962 were dealt with in accordance with the view taken by the High Court in the writ petition filed by J.C. Shah. In the result, the three writ petitions filed respectively by the three respondents were allowed and notices of demand served on them were quashed. It is against these three orders that the Assistant Collector of Central Excise and Customs at Surat and the Inspector, Central Excise Sector III of the relevant Range as well as the Union of India have brought these appeals to this Court by special leave. That is how the only question which arises in all the three appeals is whether the respondents claim for exemption from payment of duty under Item 12A(v) is justified or not.

Reasoning: Item 12A(v) refers to cases where artificial silk fabrics are produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 powerlooms in all are installed. Can it be said that the powerlooms which work in the two partnership in which the respondent is a partner are worked by or on behalf of the same person, viz., the respondent. It is quite true that under the law of partnership each partner is an agent of the other partners, but when clause refers to the same person, does it take in cases like the present where a person is working a factory of his own and has joined other partners in working other factories belonging to the said partnership? Under Section 3(42) of the General Clauses Act, 1897 (No. 10 of 1897), a person shall include any company or association or body of individuals, whether incorporated or not; and so, it may be conceded that a partnership is a person within the meaning of Item 12A(v). But are the two partnerships of which the respondent is a partner the same person as the respondent? In other words, is the test that the production of artificial silk fabrics must be attributable to the same person, satisfied in a case like the present? The Bombay High Court has answered this question in the negative and in our opinion, the view taken by the High Court is right. The contention of the appellants that every partner of a firm is in law the same person as the firm within the meaning of Item 12A(v) seems to us plainly inconsistent with the content of the said item and the object intended to be served by it in granting exemption to cases covered byargument appears to us to be misconceived. If a partnership consists of 10 persons on Mr. Prems argument the articles produced by the factory belonging to such a partnership may become theof duty in respect of each one of the partners. In fact, in Civil Appeal No. 395/1962 that is what the taxing authorities have purported to do. In the partnership M/s. Arun Textiles with which the said appeal is concerned, there were two partners who were also partners in M/s. M. Kantilal & Co. and notices have been served on both the partnerships in respect of the artificial silk fabrics manufactured in factories belonging to the partnership. The view taken by the taxing authorities was that both the art silk factories, namely, Arun Textiles and M. Kantilal & Co. of Surat which had common partners and had an aggregate potential loomage of more than 24 powerlooms and were producing rayon or art silk fabrics in both these factories, are treated as a collective entity for the Central Excise purposes for the period in question.5.Apart from this consideration, however, on a plain construction of the relevant clause, the context seems to require that the words "the same person" cannot receive the liberal construction for which the appellantsrespondent Shah owns a factory in which there are 9 powerlooms. He is a partner in two other factories in which there are 24 and 19 powerlooms respectively; but the production of artificial silk fabrics attributable to these two factories cannot be said to be production or manufacture by or on behalf of the same person. The production in the first factory is by or on behalf of the respondent himself, while the production or manufacture in the other two factories is by or on behalf of two separate partnership of which the respondent happens to be one partner. We, therefore, feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future.