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2015 (10) TMI 1840 - AT - Central ExciseValuation - Related person - mutuality of interest - SSI exemption - Held that:- As held by the Hon'ble Apex Court in the case of Alembic Glass Industries Ltd. (2002 (4) TMI 75 - SUPREME COURT OF INDIA), merely having shareholding does not make them related persons. - loans has been repaid by M/s. SIPL in future. Moreover, goods sold to M/s. CF by M/s. SIPL at a gross profit of around 16-18% and the sale by M/s. SIPL to M/s. CF is negligible in the year 2001-02 i.e. 8.9%, in the year 2003-04 i.e. 3.20% except in the year 2002-03 i.e. 20.23%. But the gross profit during the impugned period ranges from 16% to 19% whereas the total gross profit of M/s. SIPL during the impugned period is around 18%. If at all, we presume that there is a mutuality of interest in that case also when the goods are sold by M/s. SIPL to M/s. CF on the price at which the goods have been sold to independent buyers, in that case the sale price by M/s. CF cannot be held as assessable value for M/s. SIPL. Therefore, we hold that demand of ₹ 4,84,076/- is not sustainable. Accordingly, same is set aside. M/s. K S Enterprises is a sub contractor and who has got manufactured this aluminum windows in question by purchasing their own raw material and at site. M/s. K S Enterprises has issued invoices to M/s. SIPL to that extent M/s. K S Enterprises, has also filed an affidavit stating that the goods have been manufactured by them and they are not paying duty as they are enjoying SSI Exemption limit. Both the lower authorities has not given credence to the affidavit filed by Shri Kultar Singh, proprietor of M/s. K S Enterprises. In fact, no contrary evidence have been produced by the Revenue, to support that the goods have been manufactured by M/s. SIPL. In fact, duty is payable on manufactured goods not on traded goods. The affidavit is having evidential value if not proved contrary. Therefore, it is held that aluminum windows were manufactured by M/s. K S Enterprises who was enjoying SSI Exemption and M/s. SIPL is only trader for said goods. Therefore, duty cannot be demanded from M/s. SIPL. - Decided in favour of assessee.
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