per : P.G. Chacko, Member (J)]. - These appeals were filed by the department, the first appeal against an order passed by the Commissioner of Central Excise, dropping the demand of duty and other proposals raised in two show-cause notices, dated 8-5-2008 and 29-5-2008, issued to M/s. INNOCORP Ltd. (hereinafter referred to as INNOCORP) and the second appeal against a similar order passed by the Commissioner dropping the demand of duty and allied proposals raised in two show-cause notices, dated 8-5-2008 and 28-5-2008, issued to M/s. DART Manufacturing India Pvt. Ltd. (hereinafter referred to as DART). The demands of duty in all the show-cause notices were for the period from April, 2007 to February, 2008.

2.The facts of the case

2.1 INNOCORP and DART were engaged in the business of manufacture of plastic tableware and kitchenware by induction moulding process. Each of them entered into a 'Contract Manufacturing Agreement' with M/s. TUPPERWARE India Pvt. Ltd. (hereinafter referred to as TUPPERWARE) for manufacture and supply of plastic tableware and kitchenware to TUPPERWARE as per the specifications of the latter. The agreement between INNOCORP and TUPPERWARE was entered on 8-1-2001 and the one between DART and TUPPERWARE was entered on 9-5-2003. The terms and conditions of these agreements were similar. In the agreement, INNOCORP/DART was referred to as "Manufacturer". A brief account of the relevant terms and conditions of the TUPPERWARE-DART agreement, taken as a specimen, is given below :

TUPPERWARE appoints the Manufacturer on a non-exclusive basis to manufacture, assemble and sell the products to TUPPERWARE in accordance with the terms hereof. In its sole discretion, TUPPERWARE may appoint any other manufacturer for the same or similar products [Clause 2]. "Products" shall mean the finished products of the specifications as detailed in the specific order made in writing by TUPPERWARE and placed on the Manufacturer specifying the quantity, specifications and delivery requirements. "Products" shall also mean such other products as may be specified by TUPPERWARE from time to time in writing to the Manufacturer to be manufactured and/or assembled and to be sold by TUPPERWARE [Clause 1].

Purchase Order shall indicate the specifications and quantity of each product to be manufactured and/or assembled and supplied pursuant to such order and the date upon, and location to, which delivery of the manufactured/assembled products is to be made [Clause 3]. The moulds required for the manufacture of the Products shall be supplied by TUPPERWARE to the Manufacturer. Certain moulds will be imported by TUPPERWARE and supplied to the Manufacturer who shall return the moulds immediately after manufacture of the ordered quantities within the time prescribed in the relevant Purchase Order [Clause 4].

All raw materials and supplies (packing and packing supplies used in connection with the finished products) shall be purchased by the Manufacturer from among a panel of suppliers nominated by TUPPERWARE and shall be of such specifications as that would result in the manufacture/assembly of the relevant products conforming to the specifications of TUPPERWARE. In case any raw materials or supplies are not available with the suppliers nominated by TUPPERWARE, the Manufacturer may purchase such raw materials/supplies from suppliers other than those nominated by TUPPERWARE, with prior written approval from TUPPERWARE. For the purpose of securing the manufacture of products on urgent basis, TUPPERWARE may arrange for the raw materials/supplies. In such event, the cost quotations shall be suitably modified by the Manufacturer [Clause 5].

Cost quotations for the products shall be determined from time to time with mutual agreement in writing. Cost of raw materials and parts (including goods manufactured by the Manufacturer and used as parts) and supplies including all shipping and forwarding costs and import duties, incom