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2016 (5) TMI 780 - AT - Central ExciseDemand of duty and imposition of penalties - under Notification No. 175/86 CE dt 01.03.86 - Clubbing of clearances of appellant with other company - Appellant contended that they have separate factory with machinery and set up and there is no mutuality of interest between them and M/s NTB International and the facts relied upon for confirmation of demands in previous period no more exists - Held that:- once the Appellant concern is alleged to be dummy concern/ fragment of M/s NTB International in that case the demand should not have been proposed against the appellant as in the eyes of the revenue the Appellant has got no independent existence. Thus it is found that the impugned orders suffers from serious infirmity on this count. Once the independent existence of a concern is denied and is held to be dummy concern, in that case the duty could not have been demanded from Appellant which is illegal. In the instant appeals, in the remand proceedings the demand has again been confirmed against the Appellant whose independent existence has been denied by the revenue. This confirmation of demand against the Appellant itself recognizes their independent existence and thus the demand made by holding the same to be part of M/s NTB international is illegal and not sustainable. While remanding the earlier show cause notice the Tribunal had directed the adjudicating authority to examine the basis of clubbing for an earlier period. However the adjudicating authority without examining the basis of clearances again confirmed the demand which shows that no fresh enquiries were made to determine as to how the Appellant is connected with M/s NTB and whether the facts show the mutuality of interest between the two. Since the demand was confirmed without examining the actual facts which can lead to clubbing of Appellant with M/s NTB international, we hold that on account of this count also, the demand is not sustainable. As the Appellant is a partnership firm and M/s NTB international is a Private Ltd. Company and therefore they cannot be clubbed. The adjudicating authority has not considered any of these aspects and confirmed the demand against the Appellant firm by clubbing it with M/s NTB International which is illegal. Therefore, on this ground also the demand against the Appellant is not sustainable. Therefore, demand against the appellant are not sustainable and are set aside. Also since the demand itself is not sustainable, we hold that the revenues appeal towards imposition of penalty against M/s Polybelt is also not sustainable. - Decided in favour of appellant with consequential relief
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