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2012 (11) TMI 690 - HC - Central ExciseSSI Exemption - fictitious company / dubious company - Imposition of Penalty - aggregate value of the clearances of M/s SECO and M/s Xenon - Whether penalty can be imposed upon dubious company whose existence cannot be denied because of the reason that the said dubious company in fact existed and obtained the excise certificate - held that:- Once it is held that one was the original company and another was the dubious company, further finding is recorded in this case that the other company in fact did not indulge in the manufacture and the clearance of the goods, and therefore, the Revenue gave show cause notice to both the companies giving them opportunity so that they can show that they separately did the transactions under consideration. Word “independent existence” does not denote the physical existence of the fictitious company, but, it denotes the existence of independent transaction by the company, which cannot be accepted in a case when it is found by the Revenue that the said company is a fictitious company of other original company who did the transactions. Tribunal was right in holding that the penalty could not have been imposed upon the fictitious company which, in fact did not do any transaction and all the transactions were done by the original company and rightly interpreted the judgment of [GAJANAN FABRICS DISTRIBUTORS Versus COLLECTOR OF CENTRAL EXCISE, PUNE 1997 (5) TMI 50 - SUPREME COURT OF INDIA] and the question referred above raised before us are answered that in the facts of this case, no penalty could have been imposed upon the respondent M/s Xenon company - Tax Case is answered and disposed of accordingly.
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