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TMI Blog2012 (10) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... d as the clearance of only one unit namely, M/s. Heemanshu Traders and the eligibility to exemptions for small scale units under Notification 83/83, dated 1-3-1983, 85/85 dated 17-3-1985 and 175/86-C.E., dated 1-3-1986 providing exemption to small scale units, should be decided on such basis. The constitutions of these seven units were as under : S. No. Name of the Party Constitution of the Party 1 Heemanshu Traders Partnership Firm 2 Krishna Industries Partnership Firm 3 M.K. Industries Partnership Firm 4 M.G. Industries Partnership Firm 5. Hari Industries Partnership Firm 6. D.G. Auto Industries Partnership Firm 7. Heemanshu Auto (P) Ltd Private Ltd Co. 3. The adjudicating authority came to the conclusion that the clearance of all the seven entities above should be clubbed in the hands of M/s. Heemanshu Traders and eligibility for small scale exemption decided accordingly. Aggrieved by the order the Applicants filed appeals before this Tribunal. The Appeals were decided by the impugned order of the Tribunal dated 19-12-2002. The Applicants filed ROM Applications 66-72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable High Court of Gujarat. The High Court disposed of the Application vide its order dated 22-02-2010 reading as under : "5. The short issue involved in this petition is that despite the order passed by this Court on 8-8-2006 in Special Civil Application Nos. 8003 of 2006 to 8009 of 2006, permitting the petitioners to withdraw their petitions with a liberty to file Misc. Applications before the Tribunal and to decide the said Misc. Applications in accordance with law, the Tribunal has disposed of Ratification Applications only on the ground that the petitioners had filed applications on 11-10-2006 in the order passed in the year 2002, i.e. after six months and hence applications are barred by limitation. It is very unfortunate that the Tribunal has not considered the order of this Court in its proper perspective and overlooked the circumstances under which the petitioners were permitted to withdraw the said petitions. While passing the order dated 8-8-2006, this Court has recorded the submissions made on behalf of the petitioners that there was an error in the order passed by the Tribunal as the issue was covered by the decision of the Hon'ble Apex Court in the case of Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. Since there was argument from the JCDR on the issue as to what extent the decision of the Tribunal dated 19-12-2002 can be altered in consideration of an application for rectification of mistake we want to consider those arguments and give a finding on this issue first. 7. The Ld JCDR who argued the matter followed up his arguments with written notes dated 29-9-2011. His main argument is that in a proceeding for rectification of error in a judicial order, only an error apparent on the face of the record should be corrected. If the application calls for travelling beyond the record such application cannot be entertained. He relies on the decision of the Apex Court in the case of Assistant Commissioner of Income Tax, Rajkot v. Suarashtra Kutch Stock Exchange - 2010 (18) S.T.R. 84 (S.C.) = 2008 (230) E.L.T. 385 (S.C.) in this matter. Para 37 of the order is reproduced below :- "37. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. CER 8(5)-Central Excise, dated 1-3-1956 as under :- (i) Different firms will be treated as different manufacturers for the purpose of the exemption limit. But if a firm consisting of certain partners say, A, B, & C has got more than one factory, all these factories should, of course, be combined. Limited companies whether public or private are separate entities distinct from shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. (ii) As mentioned above, if there are the two firms with only some of the partners in common, each firm is entitled to separate exemption limit, and hence the question of distributing the exemption does not arise. If one firm or one individual owns several factories he or it gets exemption only in respect of one lot of 125 tons and the manufacturer being only one entity there is no question of distributing the exemption. (iii) If there are more than one mill under the control of one manufacturer there is no question of choosing any 'mill' for the purposes of exemption. The Central Excise department is concerned with a manufacturer which may be an individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter requires to be viewed accordingly. 2. The Board had then felt the position as mentioned above including in respect of Notification No. CER-8(5)-C.E., dated 1-3-1956 was sufficient to deal with the interpretation under Notification No. 176/77 dated 18-6-1977. Now in exercise of the powers conferred under Section 37B of the Central Excise Act, 1944 (1 of 1944), for the purpose of ensuring uniformity of levy of duties of excise, the Central Board of Excise and Customs have ordered that the general principles as mentioned above in the context of Notification No. 176/77 dated 18-6-1977 will be applicable to Notification No. 175/86 also. The Board have issued the above order on 29-5-1992. Sub :- The text of the Direction issued under Section 37B is as follows :- "In exercise of the powers conferred under Section 37-B of the Central Excise Act, 1944, for the purpose of ensuring uniformity of levy of duties of excise the Central Board of Excise & Customs has ordered that the following general principles will be applicable to Notification No. 175/86-C.E. :- (i) The question whether different partnerships having common partners are treatable as separate manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, Pune that the three units (the appellants herein) procured raw materials together, they had common credit facilities from the suppliers, had common stock accounting and planning, they are inter-dependents in manufacturing operations, had common stock of raw materials and semi furnished goods, were having common use of the machinery between the three units, were having common marketing arrangements and free flow of finance between themselves. On these basis, the Tribunal concurred with the Collector that the three units In fact are so inter-related that the Department was justified in clubbing their total production as production from one unit for the purpose of Central Excise Act. 3. In these appeals, Shri Joseph Veilapally, learned Senior Advocate appearing for the appellants contended, even according to the material relied upon by the respondents, it is clear that the three units are independent units, though, may be having certain common facilities for the sake of convenience, which does not make the unit inter-related. At any rate, it was argued on behalf of M/s. Supreme Washers (P) Ltd., the appellants in Civil Appeal No. 6161 of 1999 that it being a limited company, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it being a limited company, its production cannot be clubbed with the other units. However, since this aspect of the case and applicability of the Circulars referred herein above was not brought to the notice of the Tribunal we are in agreement with the suggestion made by the learned Attorney General that it will be just and proper to remand this matter, for this limited purpose, to the Tribunal for examining the applicability of the Circular relied upon by the Appellants, M/s. Supreme Washers (P) Ltd. 7. For the reasons stated above, we confirm the finding as to the inter-relationship between the three units, as found by the Tribunal, and remand the appeals back to the Tribunal for the limited purpose of deciding the applicability of the Circular referred herein above. 8. The appeals are, therefore, allowed and remanded for the fresh disposal by the Tribunal in accordance with law to the extent indicated herein above." 13. On remand, this matter was decided by the Tribunal and the decision is reported as L.D. Industries v. C.C.E. - 2003 (157) E.L.T. 459 (Tri). This order is reproduced below : "[Order per : Justice K.K. Usha, President]. - These appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-5-1992 taken note of by the Hon'ble Supreme Court as such is not produced before us. But on going through the circular dated 10-5-1956, it is seen that paragraphs (i) to (iii) contained therein are quoted verbatim in circular dated 29-5-1992 as if those provisions stood contained in Notification dated 1-3-1956. Both sides submit before us that what is referred in circular dated 29-5-1992 and as contained in Notification dated 1-3-1956 are the same as is found in the circular dated 10-8-1956. We proceed to consider the matter on the above basis. Paragraph (i) of the circular dated 10-8-1956 reads as follows :- "(I) Different firms will be treated as different manufacturers for the purpose of the exemption limit. But if a firm consisting of certain partners say, a, b & c has got more than one factory, all these factories should of course be combined. Limited companies whether public or private are separate entities distinct from shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit." The above portion would show that the limited companies whether public or private are to be treated as separate en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not relate to Notification No. 1/93. 12. What this Court was emphasizing in the aforesaid decision was not only the fact that Circular 6/92 has no effect upon commencement of Notification No. 1/93, but also the fact that the distinct legal nature of Companies cannot be used as eyewash to portray its independent nature. Where the companies are indeed interdependent and possibly even related through financial control and management, the value of clearances has to be clubbed together in the interests of justice. The operation of Circular 6/92 admittedly protected entities like the appellant prior to the commencement of Notification No. 1/93, but certainly not after the same. In this case, this Court has been presented with a preponderance of evidence to suggest that the companies are related not only in terms of financial control, but also through management personnel. In Modi Alkalies & Chemicals Ltd. & Ors (supra) this Court has held that two basic features which prima facie show interdependence are pervasive financial control and management control. We, therefore, proceed to apply the said two tests to the facts of this case." 15. The Ld JCDR points out that the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods billed in the name of the limited company. (iii) In this case clearances of 7 entities were ordered to be clubbed, out of which one is a limited company. It is to be decided whether for the reason that one entity is a limited company clubbing of even the six partnership firms will also fail. 18. It is very clear that the circular and the decision in the case of Supreme Washers (P) Ltd by the Tribunal are with reference to a situation whether the entities are just a legal facade is also to be answered in the negative because no such situation is discussed. From a reading of the Circular it is clear that it is issued in the context of clubbing the clearances of different factories for the reason that the ownership of the factories is in the hand of persons some of whom may be common by constituting different entities with different legal structures like partnership, limited company etc. The observation of the Apex Court in para 12 of the case of Parle Exports Ltd (supra) is as under : "12. What this Court was emphasizing in the aforesaid decision was not only the fact that Circular 6/92 has no effect upon commencement of Notification No. 1/93, but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposing of the case while deciding the case afresh in the context of directions from the Apex Court and (c) Para 5 of the order dated 22-2-2010 of the High Court of Gujarat. - These show that doubts are raised and required to be decided only in the matter of clearances shown in the name of the limited company with clearances of the other six firms and not about clubbing the clearances shown in the name of the six firms together. 21. Against the backdrop of the findings on the three issues the facts of the case can now be studied. Extracts from para 35 of the SCN and the relevant paragraphs in the impugned order dealing with clearances shown in the name of Heemanshu Auto (P) Ltd. are extracted below : 21.1 Extracts from para 35 of the SCN detailing the statement given by Shri. Deepakbhai Budhidhan Shah Director of Heemanshu Auto Pvt. Ltd. on 27-7-1988 : 'To a specific question whether they are affixing any brand name of Heemanshu Traders he stated that they are not using Heemanshu Traders brand name but they are putting "U. L. F. Heemanshu Traders Bombay" and "H. T." on their products'. 21.2 Extracts from the impugned order "32.3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-1988 was recorded, he stated that the challan was made on the name of M/s. Heemanshu Auto Pvt. Ltd. on the direction of Sh. Girish Bhai Shah, brother of Sh. Priyakant Shah though the said G.B. Shah has no legal locus standi in M/s. Heemanshu Traders as he is neither an authorized signatory nor a partner in the said firm. This aspect I have discussed in detail in the earlier part of the order. Thus, from the above, it would be seen that in order to remain within the exemption limit, M/s. Heemanshu Traders have been issuing challans for their goods on the name of Heemanshu Auto Pvt. Ltd. their sister unit. 32.3.4 Further, the following points & instances will establish inter-relationship of M/s. Heemanshu Traders, Umbergaon amongst the other noticee units to show mutuality of interest as well as financial flow back amongst them. 33. (a) I note that M/s. Heemanshu Traders, Umbergaon received Bill No. 717 dated 30-12-1987 from B.H. Steel Industries, Bombay which was returned by M/s. Heemanshu Traders vide his letter dated 2-1-1988 requesting them to issue the same in the name of M/s. Heemanshu Auto Pvt. Ltd. Similarly, bill No. 633, 644, 660, 655 and 596 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chambers, 13th Floor, Near Roxy Cinema Bombay-400004. (emphasis provided) Yours faithfully, For Heemanshu Traders Sd/-- Partner The above letter clearly establishes that they M/s. Heemanshu Traders were even manipulating bills to remain within the exemption limit. (b) I further note that M/s. Heemanshu Traders, Umbergaon, received stamping lamination from M/s. Heemanshu Auto Pvt. Ltd. (invoice No. A/42/43 dated 31-8-1982 and A/39/43 dated 31-8-1987) M/s. Heemanshu Traders, received electrical stamping and laminations from M/s. M.K. Industries, Umbergaon. M/s. Heemanshu Auto Pvt. Ltd dispatched C.B. Points to M/s. Heemanshu Traders, Umbergaon (Invoice No. A/36/43 and A/35/43 dated 8-6-1987) M/s. M.K. Industries sold electrical stamping and laminations to M/s. Heemanshu Traders (Invoice No. C/351/43 dated 7-8-1987). 33.1. I have perused the following records & note as under : (i) Cash-bank Book of M/s. Heemanshu Auto Pvt. Ltd for the year 1986-87 and 1987-88 (Ex. 152 and 163); (ii) General Ledger of M/s. Heemanshu Auto Pvt. Ltd for the year 1986-87 and 1987-888 (Ex. 149 and 162) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-33633/- 28-3-88 : By Bank - 10,000/- 13-7-87 Bill A/15 - 15487/- 24-8-87 To bill No. A/35-560/- M/s. M.K. Industries - SY 2043 page No. 29 19-10-83 To bank - 25000/- 3-3-1987: By bank-20,000/- 9-3-87 By bank - 1,000/- 18-7-87 By bank - 20,000/- 33.1.4 From the perusal of General Ledger for the year 1987-88 of Heemanshu Auto Pvt. Ltd. (exhibit 162), I find that inter alia, the following debit/credit entries finds place in the name of Heemanshu Traders and M.K. Industries. M/s. M.K. Industries - SY-2044 Page : 29 2-1-88 : To Bank 7800/- 27-10-87 by bill D. 4 - 696.64 2-2-88 : To bank 10000/- 4-11-87 by bill D.14- 7293.68 10-11-87 : By bill D.22 - 2868.01 M/s. Heemanshu Traders - SY - 2044 Page 55 6-11-1987 : To Bank- 50000/- 24-11-1987 by bank 20,000/- 28-12-1987 : to Bank 19700/- 24-12-1987 By bank 1,97,000/- 33.1.5 From the perusal of Cash-Bank Book-II (exhibit 148) of Heemanshu Traders for the year 1986-87, I find that inter alia, the following debit/credit entries finds place in the name of Heemanshu Auto Pvt. Ltd. and M.K. Industries. (1) Dated 22-8-87 at page No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all placed the orders against the said price list to M/s. Heemanshu Traders, Bombay. (c) I have perused horns and C.B. points price list file as on 1-9-1986 (Exhibit 79) : M/s. M.K. Industries issued revised price lists to the following customers viz 1. M/s. Bajaj Auto Ltd. Akurdi, Pune 2. M/s. Jai Hind Motors 3. M/s. Scooter India Limited 4. M/s. Vishnu auto Pvt. Ltd. new Delhi All these letters were addressed by the partner of M/s. M.K. Industries from their Bombay office indicating the following address: 1305, Prasad Chambers, 13" 'floor, Near Roxy Cinema. Bombay-400006 from which M/s. Heemanshu Traders, Umbergaon and M/s. Heemanshu auto Pvt. Ltd. are/were functioning (emphasis provided) (d) M/s. Heemanshu Traders, purchased raw materials i.e. bushes, nuts and brass sheets, screws, name plates for M/s. Maharashtra Scooter Ltd. and M/s. Himanshu Traders used to supply the same to all the working units at Umbergaon. (e) M/s. M.K. Industries sold parts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t M/s. Heemanshu Traders also directed Shri Pandya to prepare a bill of copper wire and electrical stamping from M/s. Heemanshu Auto Pvt. Ltd., Umbergaon and further enquired whether the bills of stamping were being issued from M/s. M.K. Industries or otherwise, as there was a problem of excise. Further, directions were issued that all the sales of M/s. M.K. Industries should be from Heemanshu Traders as the benefits of excise was being taken from Heemanshu Traders. "(n) I further note that M/s. Heemanshu Traders also directed Shri Pandya to prepare a bill of copper wire and electrical stamping from M/s. Heemanshu Auto Pvt. Ltd., Umbergaon and further enquired whether the bills of stamping were being issued from M/s. M.K. Industries or otherwise, as there was a problem of excise. In further, directions, directions were issued that all the sales of M/s. M.K. Industries should be from M/s. of M/s. Heemanshu Traders as the benefits of excise was being taken from M/s. Heemanshu Traders. (p) I note that Shri Pankajbhai Jaswantlal Mehta, Administrator of Heemanshu Traders of Bombay in his statement dated 6-5-1988 stated that he is dealing with purchase and administration work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes necessary to know the character of a corporate person, or when a corporation has been created to avoid some legal obligation or when the device of corporate personality is used to perpetuate fraud, as to evade tax or when it is used to evade a statute" 22. Against the finding as in para 33.8.2 in the impugned order as reproduced above, which was affirmed by the Tribunal in its order dated 19-12-2002, which is sought to be corrected, need no correction in view of our legal finding in para 18 above. Further as can be seen, at least in the case of seized goods, the goods were actually manufactured in the factory of Heemanshu Traders but billed in the name of Heemanshu Auto (P) Ltd. Such goods are clearances from the factory of Heemanshu Traders only, though the facts available in the impugned order is not complete enough to conclude that all the goods shown to be cleared using invoices of Heemanshu Auto (P) Ltd. were in fact manufactured in the factory in the name of Heemanshu Traders. Further while considering the ROM applications in the context of the directions of the High Court of Gujarat there is no scope to negate the clubbing of the clearances of the six partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X
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