Per G.A. Brahma Deva:

This is an appeal filed by the assessees against the impugned order passed "by the Additional Collector of Central Excise, Nagpur.

2. The appellants remained absent when the case was called, but, however, there was a request from them to decide the case on merits. Accordingly, we proceed to pass this order after hearing Shri Satnam Singh who reiterated the findings given by the authorities below.

3. The appellants are engaged in the manufacture of P.P. Foods. A show cause notice was issued to the party alleging that the appellants are Processors who were doing the job work for M/s NOGA Company, Nagpure, this job work is done by the assessee on contract basis. The raw materials empty bottles (containers), labels etc. were supplied by M/s NOGA Company of Nagpur. Since the party is undertaking the job work for and on behalf of NOGA they can be termed as loanee licencee of NOGA. Accordingly, the clearance value of the NOGA for computing exemption limit, the value clearances of NOGA has to be taken into account. As the clearance value of NOGA is much more than the exemption limit prescribed under Notification No. 83/83 dated 28.2.83 and 85/85 dated 17.3.85, the clearances effected by the said unit on behalf of M/s NOGA are not entitled for exemption. Larger period under Section 11A was also invoked on the ground that they have suppressed the facts. The duty amounting to Rs. 30, 191.61 was confirmed by the Adjudicating Authority who passed the adjudication order. Hence this appeal.

4. We have carefully considered the matter. It is settled position now that job worker is a manufacturer. Even it is the case of the Department that assessee is job worker who does job work to the supplier of raw materials. Since the job work was carried out by the assessee independently in his factory, he is manufacturer and not the supplier of raw materials. It is also settled position that supplier of raw material cannot be considered as manufacturer unless it is shown that entire manufacturing activity is controlled by the supplier of raw materials or other persons who manufacture the goods was hired by the supplier of the raw materials. No such case has been made out. In the case of Ujagar Prints reported in 1989 (39) ELT - 493, the Supreme Court has categorically held that job worker who manufacture independently as per terms of the contract; is the manufacturer and not the supplier of raw materials. Since then the Tribunal has been consistently taking this view following the ratio of the decision of the Supreme Court holding that job worker is manufacturer. In the facts and circumstances of the case and in view of the clear charge of the department that work was done on contract basis, it cannot be held that M/s NOGA Company, Kanpur is manufacturer and in other words, the clearance of NOGA Company, Nagpur cannot be taken into consideration while considering the exemption in terms of Notification No. 83/83 and 85/85. Accordingly, the clearances effected by the assessee alone is to be taken into consideration for the purpose of exemption in terms of the above notifications. In view of these observations, this appeal is disposed of.