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TMI Blog2008 (8) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... s and M/s. Razia Timber Industries are required to be clubbed with the clearance of the appellant's unit. It is the submission of the appellant that the Revenue ought to have issued the show cause notice to other two units whose clearances are proposed to be clubbed with the clearance of the appellant's unit. As such a step has not been taken, the proceedings are not sustainable in terms of the several citations. He relied on the judgment rendered in the case of Shree Krishan Minerals & Others [2005 (190) E.L.T. 251 (Tribunal) = 2005 (71) RLT 435 (Bang.)] and Shilpa Chem. [2005 (187) E.L.T. 360] which has been upheld by the Apex Court reported in 2006 (199) E.L.T. A129. He also relied on a large number of judgments in the written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submits that the impugned order has to be set aside on the ground that the Revenue has failed to issue show cause notice to other two units whose clearances were proposed tb be clubbed with the clearance of the appellant's unit. 3. The learned SDR points out the objections raised by Shri G. Narayanaswamy, then Joint Director, DGCEI, Bangalore. He has filed several grounds and ultimately he stated in Para 10 as follows :- "10. In case the explanation offered above is not satisfactory, full opportunity may please be given to me to defend the department's point of view by providing all the records, sufficient time and specifying the issue to be clarified. However, it is hoped that the issues have been sufficiently clarified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o used the invoices of other unit to effect clearance of their goods assuming that such value would not be added to their turnover. (iv) For quantifying the duty demand, the production and clearance as reflected in the Register No. 22 belonging to M/s. Southern Plywoods only have been taken into consideration (Para 22 of the OIO) (v) The quantity recorded as received from M/s. Hindustan Plywoods in the Register No. 22 of M/s. Southern Plywoods has not at all been taken for demanding duty from the latter (Para 13.2 of SCN is reiterated by Para 23 of the OIO) (vi) No allegation to say that they are related companies/firms was made and no attempts were made to club the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As no duty liability had arisen on M/s. Raziya Timber Industries, since they did not manufacture and clear the goods, it was not required to issue an SCN demanding duty from them. (xii) As the common partners of M/s. Southern Plywoods and M/s. Raziya Timber Industries - Shri M.K. Hamza and Shri M.K. Shoukath were involved in manipulations for evading excise duty, show-cause notices have been issued to them for penalty. The Indian Partnership Act, 1932, Chapter III (clause 24) makes it clear that the notice to partner (s) operates as notice to the firm. As both the partners of M/s. Raziya Timber Industries, Shri M.K. Hamza and Shri M.K. Shoukath were issued notice for penalty, it amounts that the firm M/s. Raz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foregoing it appears that the question of imposition of cost for not issuing show cause notice to M/s. Raziya Timber Industries does not arise as it would be contrary to the position held by the Apex Court in the case of CCE v. V. Madhu [2002 (146) E.L.T. 252 (S.C.). In fact, under the given circumstances of the case, issue of show cause notice to M/s. Raziya Timber Industries would have resulted in a frivolous litigation. Therefore, it is requested that the Department Representatives may be impressed upon to convey the factual position and stand of the department effectively to the honourable Tribunal, Bangalore Bench." 4. The learned Counsel again reiterates the judgment cited supra by him which had been confirmed by the Apex Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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