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2018 (11) TMI 901 - AT - Central ExciseSSI Exemption - clubbing of clearances - two units managed by same person - separate entities or not - mutuality of interest - Held that:- Both the units are being managed by Sh. Shiv Kumar Goel and Sh. Yash Pal Goel, but are two separate private limited companies located at two separate locations and are having their own separate plant and machinery to manufacture their final products - if any amount is transferred from one company to another, the same has been returned back within reasonable time, then it cannot be alleged that there was a flow of the funds - Moreover, the allegation that too from M/s DST, the amount has been withdrawn by the shareholders to purchase the shares of M/s KCP, cannot be a reason of clubbing of clearances - If the adjudicating authority is of the view that both M/s DST and M/s KCP are one and same, in that circumstance, it is required to be declare by the adjudicating authority who is the principal unit and duty is to be demanded on the principal unit only. But in this case, duty has been demanded separately from both the units, which also shows that the adjudicating authority is in doubt to conclude that which is the principal unit - clubbing of clearances not justified - decided in favor of assessee. Clandestine removal - reliability on statements of persons based on which charge of clandestine removal is based - Held that:- During the course of cross examinations, Sh. Rahul Jain, one of the supplier, appeared who stated that he has issued the invoices in the name of M/s KCKL and received the payment from M/s KCKL, therefore, the statement of Sh. Rahul Jain during the course of cross examination established that M/s KCKL was a trading firm and was not a dummy firm as alleged by the Revenue. Moreover, the other witnesses whose statements have been relied upon, were not cross examined despite the direction of this Tribunal, therefore, the statements of these witnesses are not admissible to allege the clandestine removal of the goods - thus, clearances made on the invoices of M/s KCKL cannot be held as clandestine removal goods by M/s DST. The charge of clubbing of units in the absence of determining which is the principal unit and which is the dummy, the charge is not sustainable - the charge of clandestine removal of the goods is also not sustainable - appeal allowed - decided in favor of appellant.
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