TMI Blog1987 (10) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the new partnership deed effected from 1-12-1978 was not intimated to the Central Excise authorities on dissolution of old partnership deed in respect of the other unit RR PM; it continued to work under the old L-4/1/SRE/75. The other unit Rana Rubber Plastic Mills (RR PM) is also manufacturing the same goods namely Rubber transmission and conveyor beltings w.e.f. 1-4-1978. Notification No. 71/78 was issued by the Central Govt. allowing an exemption inter alia on the aforesaid goods, to a manufacturer up to the value of Rs. 5,00,000/- within the financial year i.e. 1978-79 and 1979-80 and so on. During the scrutiny of R.T.12 Returns by the Range officers of Central Excise. It was observed by Range officer that the appellant company RRI had another unit RRPM as stated above with identical partners and partnership. Accordingly, it was alleged that the clearances of both the units namely RRI and RR PM were to be clubbed for the purpose of computing the exemption limit of Rs. 5 lakhs in terms of Notification No. 71/78, dated 1-3-1978. It has also been alleged that from the scrutiny of Invoices submitted by the appellant only on 11-1-1982 after they were first requested for by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership deed with specified partners, it is required to be registered under the Indian Partnership Act. If that is not done, then the appellant company was required to follow the provisions of the Central Excise Law, to rid itself of the Central Excise duty liability. Therefore, we are inclined to agree with the adjudicating authority that the dissolution of the old partnership in respect of the other unit RR PM and re-constitution of the new partnership without following the procedure laid down by the Central Excise Law cannot be accepted in the facts and circumstances of the case inasmuch as the appellants have not been able to prove that the new partnership deed has come into existence w.e.f. 1-12-1978. (ii) A plea was taken up by the learned Consultant for the appellant that a partnership is distinct from the partners. Therefore, the two units namely RRI and RR PM cannot be said to belong to the same person or the manufacturer. For this proposition, the learned Consultant relies upon the Tribunal s decision in the case of M/s. G.D. Industrial Engineers, Faridabad v. CCE, Chandigarh [1983 (14) E.L.T. 1994 (Cegat)]. This decision relying on Supreme Court decision reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely RRI and RRPM had been submitting regular RT-12 returns in respect of goods manufactured and removed from both the units. These have also been assessed by the officers concerned. Both the units fall under the same Central Excise range within the jurisdiction of the same Superintendent and of the same Inspector. Similarity of the name of the two units should have alerted the Central Excise officers to enquire further into the constitution of the partnership of both the units. Failure to do so would raise a presumption in favour of the appellant that the officers know about the common partnership of the two units. Accordingly, no presumption of suppression of facts or misstatement of facts can be attributed against the appellant. The show cause notice, therefore, is time barred. We are unable to accept this plea of the appellants learned Consultant. In the absence of any declaration by the appellant while submitting the classification list for clearance of the goods in terms of Notification No. 71/78, the presumption of bona fides on the part of the appellant company cannot be accepted. They ought to have declared, before availing of the said exemption, about the same partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consultant is that in any case the penalty is unwarranted in the facts and circumstances of the case and Section 47(2) of the Finance Act, 1982 lays down that the said amendment under Section 4 could not make an offence retrospective. We are afraid that there is no substance in the plea of the learned Consultant. The show cause notice had been issued on 30-1-1982 i.e. before the insertion of amendment by Finance Act, 1982. Therefore, there is no question of retrospectivity of offence in the instant case and the offence of the appellant here does not merely relate to the amendment to Section 4 of the Central Excises and Salt Act; but also to other factors such as suppression of facts about correct valuation of goods and the two units being under the identical partnership. (vi) Last plea of the learned Advocate for the appellant is that the demand of duty has been wrongly calculated inasmuch as the total values for the 2 years i.e. 1978-79 and 1979-80 are values or total realisation made by the appellant including the element of duty therein. Therefore, before arriving at an assessable value, after giving allowance of exemption limit of Rs. 5 lakhs, duty element should be deducted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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