S.D. Jha, Member (J)

1. The question for decision in this appeal, originally filed as Revision Application to the Government of India, relates to correctness or otherwise of Order-in-Original dated 21-4-1982 passed by the Collector of Central Excise, Bombay-II. By the said order, the Collector held that the goods manufactured by M/s. Babu Lal Bhoti Lal Co. and M/s. Hind Industries were in fact manufactured by or on behalf of one manufacturer i.e M/s. Jagjivandas Co. He accordingly ordered M/s. Jagjivan Dass Co. (hereinafter called M/s. Jagjivan Dass and the other two concerns hereinafter called M/s. Babu Lal and M/s. Hind) to pay Central Excise duty amounting to Rs. 3,15,728.27 and he further imposed a penalty of Rs. 10,000/- on the appellants and the other two purported concerns.

2. Facts material for decision of this appeal are that Notification No. 176/77-C.E., dated 18-6-1977 as amended grants exemption in the matter of Central Excise duty on the basis of clearances. There is no dispute that if the clearances of the appellants and two other concerns described above are clubbed together, they would exceed the stipulated limit under the Notification, aforesaid. The proceedings against the appellants commenced as a result of search dated 21-2-1979 by the Officers of the Directorate of Revenue Intelligence (Antievasion Wing), Central Excise, Bombay. The Officers after the search and investigation felt that the clearances made by the other two firms viz. M/s. Babu Lal and M/s. Hind were for and on behalf of M/s. Jagjivan Dass. Show Cause Notice dated 14-8-1979 was then served on the appellants M/s. Jagjivan Dass, M/s. Babu Lal and M/s. Hind. The three firms filed replies denying the allegations and contended that the firms were separate and distinct and their clearances could not be clubbed. The Collector after complying with the usual procedure demanded Central Excise Duty and imposed penalty, as already described above.

3. Aggrieved with the order, the appellants filed Revision Application which is the present appeal to the Tribunal. Point as to M/s, Babu Lal Bhoti Lal Co. and M/s. Hind Industries not having filed appeal to the Tribunal raised at the fag end of the hearing may be disposed of first. The appeal was heard on a number of days and finally on 17-9-1984. This objection as to M/s. Babu Lal Bhoti Lal and M/s. Hind not having filed an appeal was not taken at the earliest opportunity. Besides, the memo, of appeal shows that though these parties may not have described themselves as appellants in the title of the appeal, they figure in para 5 of the Memo, of appeal. The fact that they are not included in the title of the appeal is only of an academic importance particularly when only one common order in respect of the three parties is passed. Besides, the order is joint and several and the order against the appellants M/s. Jagjivan Dass is not separable from the order against M/s. Babu Lal Bhoti Lal Co. and M/s. Hind Industries. This apart, the Collector has proceeded on the basis that the two firms M/s. Babu Lal Bhoti Lal and M/s. Hind are only purported concerns of M/s. Jagjivan Dass. Taking all this into consideration we attach no importance to the fact that M/s. Babu Lal Bhoti Lal and M/s. Hind have not joined in the title of the Memo, of appeal as appellants. We reject this belated objection.

4. Shri P.S. Sahni, learned Advocate for the appellants, in his written and oral submissions argued that there is only one common partner in the three partnership firms M/s. Jagjivan Dass Co., M/s. Babu Lal Bhoti Lal and M/s. Hind Industries. The three firms were registered on 8-12-1960, 1968 and 1966 respectively long before Tariff Item 68 came on the Statute book. Therefore to say that the firms were not real or were illusory and were brought into existence to evade payment of Excise duty was wholly unjustified. The site plan for the three factories was separately approved. Each of the three firms is separate and