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2013 (5) TMI 543 - AT - Central ExciseSSI Exemption – Benefit denied – Commmom brand name - clubbing of clearance - brand name of Maharaja - Notification No.175/86 - Held that:- it was not the case of the Revenue in the SCN to club the clearance of the units. - In fact the demand stands confirmed against each unit separately by the adjudicating authority himself. Thus establishing their separate identity. - all the units being registered separately, manufacturing different goods though identical and located at different places, having complete machinery to manufacture goods cannot be held to be related parties, merely because the Directors or partners or proprietors are relative of each other. - club of clearance is not valid. M/s Hindustan Machines had declared the value of clearances in the year 1987-88 as Rs.9.50 lakhs approximately. There being no evidence to show that the said figure of clearance was not correct, therefore the same has to be hold as the correct clearance value. If that be so, he was entitled to SSI exemption Notification No.175/86-CE during the succeeding financial year, 1988-89 and thereafter. In as much as the brand name owner M/s Hindustan Machines has been held to be entitled to the benefit of Notification, the other units using the said brand name would become entitled to the benefit of SSI exemption Notification as they are not hit by para 7 of the Notification. Thus, conformation of demand against the M/s Hindustan Machines as also other manufacturing units by denying them the benefit of SSI Notification is unsustainable. The said part of the demand is accordingly set aside along with setting aside of the penalties on the said ground. Clandestine removal of the good – Held that:- charges of clandestine removal cannot be made on the basis of assumptions and presumptions and on the basis of documents recovered from third person’s premises, without their being any evidence of actual manufacture of the excess quantity, which required corroboration of procurement of raw material, the labour as also electricity consumption etc. - In a case of clandestine removal the department should produce positive evidence to establish the same. In the absence of same, a finding cannot be based on the contents of loose chits of uncertain authorship. Department has not produced evidence of use of inputs to prove that there was manufacture of unaccounted finished product. Therefore, confirmation of demand against the appellants on the allegation of clandestine removal is unsustainable. Under valuation – Whether the advertisement and publicity expenses incurred by M/s Technocrat Marketing are required to be added in the assessable value of the appellants final product or not? - Held that:- The issue stands decided by the Hon’ble Supreme Court’s decision in the case of M/s Phillips India reported in [1997 (2) TMI 120 - SUPREME COURT OF INDIA] on the basis of same the advertisement expenses or publicity charges incurred by the marketing company cannot be included in the assessable value of the goods manufactured by the respective manufacturing units. Confiscation of seized goods – Appellants contended that the said goods were in semi-finished condition and were yet to be recorded in the RG-I register, that is why some of the goods were only detained and not seized. Adjudicating authority has not dealt with the above plea of the appellants. It seems that the order has been passed with pre-determined mind to confiscate the goods. There is no statement appearing that the same were meant for clandestine removal. Thus, the confiscation of the said goods is not warranted. Imposition of penalty – Held that:- In as much as the demands have been set aside, the penalties imposed upon them under various provisions of Central Excise Act, 1944 and the Central Excise Rules are also set aside. Further in as much as the appeals of manufacturing units stands allowed, the imposition of penalties upon individuals, who are either Directors/Partners of the said units are also set aside.
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