TMI Blog2013 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... their final product. Both the units have separate Sale Tax Registration, Industries Registration, Income Tax Registration, Electricity Connection, Telephone Connection & ESI Registration etc. Merely because there is a door between the two units and power of attorney stand given to her husband to look after the job of her unit, by itself cannot be held to be a ground for holding both the units as one - Husband and wife are entitled do their own business and if the husband is looking after the business of the wife that will not make the unit owned by the wife as a dummy unit. The prime requirement, for clubbing the clearance of two units is not having complete independent machinery and infrastructure to manufacture the goods. If both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the name and style of M/s Sharad Industries, Agra. It was reported that the Proprietor of the Respondent No. 1 is Mr. Avdesh Kumar Gupta and the Proprietor of the Respondent No. 2 is Smt. Kamlesh Gupta W/o Shri Avdesh Kumar Gupta. The officers during the course of investigation observed the following points:- (a) M/s R.R. Iron Foundry and M/s Sharad Industries had common office, situated at the factory premises of Appellant No. 1 in order to have better control, (b) the records of both the units were also kept and maintained therewith, doors between both the units were created and common labours were being utilized in both the units but according to convenience the labours were being deployed in any of the two units, (c) RRIF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the husband to run the business which is in wife s name and the products are with the Brand name which is admittedly belonging to their family therefore prima-facie it appears that the benefit of both the units is accruing to the same set of persons constituting a family. Merely because they are having separate records for the requirement of Trade Tex Act etc, the two cannot be considered separate. The acid test in such case is recipient of the benefit. Unless the wife or husband are professional and engaged in separate business by virtue of their professional standing and practice it is difficult to hold that enterprises having common product, common management and common brand name etc. are separate. Through the noticee have argued that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the units, 5. Validity of such an agreement come up for consideration before the Hon'ble CEGAT, New Delhi in the case of Bentex Motors Central Industries Vs Collector, Central Excise, New Delhi 2002(139) ELT-679(Tri-New Delhi). The double member bench ruled that as per agreement deed all the Partner are eligible to use the Brand name as it would belong to them, 6. Some of the additional case laws in support of our contention that the production of the two unit M/s R.R. Iron Foundry and M/s Sharad Industries cannot be clubbed are cited. The respondent also relied upon various decision of the Tribunal in support of their contention. 4. The Commissioner (Appeals) allowed the appeal of the respondent by observing as under:- Both the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered in the name of Appellant No 1 nor Appellant No. 2. Both can be used it as per agreement executed. Also this is not a case of use of Brand name by another person. Thus, I hold that the firms Appellant No.1 and No.2 could not be treated as one unit for clubbing their clearances for the purpose of payment of duty. Moreover, I also observe that in the Show Cause Notice it has been nowhere alleged and identified that which of the two firms was a dummy or a firm, which only existed on papers and not in reality. The duty demand had been raised from both the firms. Even the Adjudicating Authority has failed to record specific finding regarding the dummy character of any of these two firms. He has likewise confirmed the duty against both of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and relied upon the some decisions of the Tribunal. 6. We, after appreciating the submissions of both the sides find that there is not much dispute on factual position. It is not the Revenues case that two unit owned by Smt Kamlesh Gupta and her husband Shri Avdesh Kumar Gupta not complete units having all the necessary machines and infrastructure for manufacture of their final product. Both the units have separate Sale Tax Registration, Industries Registration, Income Tax Registration, Electricity Connection, Telephone Connection ESI Registration etc. Merely because there is a door between the two units and power of attorney stand given to her husband to look after the job of her unit, by itself cannot be held to be a ground for hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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