TMI Blog1999 (11) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ed four appeals. As the four appeals arise out of the same order, therefore, they were heard together and are being disposed of by this common order. 2. The facts of the case in brief are that on 10-11-1986 Central Excise Officers intercepted one hand driven cart loaded with 12 rolls of transmission rubber beltings measuring 1290 mtrs. Shri Sham Lal, the cart man could not produce any G.P.I/invoice/other documents covering the consignment. In his statement recorded on 10-11-1986 he stated that the goods had been removed from the premises of M/s. New India Rubber Mills, Dinanagar and were to be kept in the godown of M/s. Northern India Rubber Mills. The staff visited the factory premises of M/s. New India and found that no G.P.I or bill was prepared in respect of the 12 rolls intercepted by the staff. When a visit was made to the godown of M/s. Northern India Rubber (Sales) and stock verification was done, 68 rolls of T. R. Beltings without serial numbers, name of the manufacturer and gate pass number etc. were found. Shri Vipan Kumar, partner M/s. NIR (Sales) in his statement, dated 10-11-1986 stated that these rolls were purchased from M/s. New India, M/s. Northern India and som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in loose condition; that such sales have been denied by Shri Vidya Dhari Mahajan of New India and Shri Vipan Kumar of Northern India in their statements datted 14-1-1987 and 16-1-1987; that they enter the goods in R.G.I only when serial number is marked on the rolls and the same are packed. He submitted that it was clear that 12 rolls measuring 1290 mtrs. were being clandestinely removed and that 68 rolls found in the godown were also removed without payment of duty. He submitted that having regard to this findings, the authorities below have rightly held that purchase of these rolls or clearance of 12 rolls through regular trade channel is ruled out. He, therefore, submitted that confiscation has rightly been ordered by the ld. Collector. 5. We have heard the rival submissions. We have also perused the evidence on record in the form of statements and other documents. We find that in the instant case there are two issues. The first issue is the seizure of the goods and the second issue is the demand of duty. Therefore, the contention of the appellants that the allegations in regard to 12 rolls and in regard to 68 rolls were outside the scope of notice to SCN and cannot be adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly being carried out; that Preventive Audit Parties visited the factories. Ld. Counsel submitted that the only evidence relied upon are letters and Mohan Lal s statement that ld. Collector has deliberately avoided any discussion of the various statements made in their reply regarding excise control and supervision. 7. The have heard the rival submissions on the independent units and their independent functioning or otherwise. We note that Shri Mohanlal s statement is very clear in which he submits that except the mixing machine, no other machine was working in one unit. Mixing alone is not the process in the manufacture of T. R. Beltings. It means that the production in the two factories were joint only a few operations were being conducted in one factory and the remaining operations were being conducted in the other factory. Thus, the units cannot be termed as producing goods independent of each other. In so far as visits of officers and the production checks reported to be undertaken by them concerned, they do not prove that the units were independently producing the goods. The allegation that the ld. Collector avoided to comment on the visits of officers is thus not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence which is based on letters written to the Government in this case to the PSEB. 10. COMMON BRAND NAME : - Shri Sangia, ld. DR submitted that M/s. Northern India and New India were selling their products with common brand names; that the brand names were NIRMILL, NIRULLA, NIRCO, NIR; that these were registered brand names of M/s. Northern India; that though Shri Vidya Dhari Mahajan claimed that they could use any brand name. However, on the other hand he took up the matter with Shri Kane, Advocate for safeguarding their interest in regard to these brand names. He submitted that it is evident that these brand names could be used only by M/s. Northern India and not by M/s. New India. Ld. Counsel submitted that trade marks were known to the excise authorities; that trade marks use alone does not justify clubbing. He submitted that in reply to the SCN it was contended by the appellants that it was not the case of the Department that one was getting goods manufactured with his trade mark from the other nor was that goods manufactured in one get branded in the name of the other. Ld. Counsel submitted that trade mark were enumerated in the price list and thus it was within the kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w International; that M/s. New International did not maintain any cash book, wage register or attendance register. He also stated that M/s. New International was a Benami concern; that finance was being arranged by Shri Mahajan; that only 5% to 7% of the goods were manufactured in New International and that too with labour and material of Northern India; that the remaining quantity was manufactured in the premises of M/s. Northern India or New India but accounted for in the records of New International. Ld. Counsel for the appellants submitted that the statement of Shri Marhawa which has been largely relied upon by the respondents was obtained by inducement. Replying to this allegation ld. DR submitted that there is other evidence to support the view that New International was not an independent unit inasmuch as purchase of canvas by New International was received in the premises of M/s. Northern India; that Shri Pawan Kumar, Manager of Salwan Goods Booking Agency stated that raw material was delivered to NIR (Sales) Behrampur Road; that Tirathram of New India acknowledged the receipt that this will show that the goods consigned in the name of New International were being received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical points on the face of the documentary evidence available. We hold that this finding of the ld. Collector is sustainable. 19. About the correspondence by Northern India on behalf of New International we find that the objection of the appellants is that these two letters were not specifically referred to in the SCN and that Shri Vidya Dhari s explanation in the letter to Bhagat was ignored. On a careful consideration of these submissions, we find that the letter is an indicator that there was commonality among the three units. 20. Having regard to the above discussions, we find that looking to all the facts and the contentions of both the sides, the units were not independent so as to be eligible for the benefit of SSI exemption each. We also note that all the facts invariably lead to the conclusion that the units were created only to evade payment of duty. They were not independent, manufacturer of each unit, was not being recorded in the records of that unit alone complete manufacture of the product was not taking place in the same unit but certain operations were being undertaken at different places. There is ample evidence on record to show that New International wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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