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2018 (8) TMI 1216 - AT - Central ExciseSSI Exemption - dummy units - case of the Department is that, all the Appellant firms/companies are the dummy units of one Shri B.M. Garg (proprietor of Garg industries), which have been created to fragment and/or bifurcate the total clearances so as to fall within the exemption limit of SSI benefit - demand entirely based certain alleged private records recovered by the department. Held that:- Upon perusing the Panchnama, it is found that the same does not give any description of the documents recovered and, instead uses the expression “file containing misc. loose pages” without indicating what the said misc. loose papers are. The Panchnama does not specifically state who had actually found the documents sought to be relied upon and from where he had found them. The Panchnama simply states that documents pertaining to sale and purchase, manufacture and clearance of goods were found in the room. Moreover, there is nothing stated in the panchnama as to whether the documents recovered were sealed or not, so as to avoid any manipulation and, in case they were sealed, whether any panchnama proceedings were recorded while de-sealing the said records. Cross-examination - principles of natural justice - Held that:- As no opportunity of cross-examine has been given to the appellant, the Commissioner has committed error in law in relying upon the statements. The charge of clandestine clearance is a serious charge and the department is required to prove the allegations of clandestine clearance by producing sufficient positive and cogent evidence - In the present case, the case of the department is based upon certain private records which are seriously disputed by the appellant and, corroborating the same by statements for which the appellant had not been afforded opportunity to rebut. Use of Brand nae of others - Held that:- Since beginning, it is the stand of all the appellants that neither of them nor Shri B.M. Garg or any other individual are owner of the brand names in issue. Shri Adesh Tiwari- Manager of Deepak Hinges, had also confirmed this fact in his statement dated 25.06.14. Nothing has been brought on record by the department to establish that the said brand names belonged to any “other person”. Thus, SSI benefit cannot be denied to the appellant(s) on the ground of using the brand name of other person - benefit allowed. Clubbing of clearances - Held that:- The facts of the case does not warrant clubbing of clearances of all the units as the Commissioner has confirmed the demand jointly as well as severally on each of the companies/firms thus accepting their separate and independent identity. All the units are entitled to get benefit of SSI notification, there is no requirement to maintain statutory records. Once, they are not entitled to maintain statutory records, the allegation that goods were found in short and/or excess, is legally not sustainable and liable to be set aside. Appeal allowed - decided in favor of appellant.
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