TMI Blog2013 (12) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty, interest and penalty are not sustainable – Decided in favour of Assessee. - E/991/2004 - Final Order No. 40278/2013 - Dated:- 10-4-2013 - P K Das And Mathew John, JJ. Appellant : Smt Sridevi, Adv. Respondent : Shri P Arul, Superintendent (AR) PER : P K Das The appellant filed this appeal against Order-in-Appeal No. 136/2004-CE dated 6.4.2004 passed by the Commissioner of Central Excise (Appeals). 2. The relevant facts of the case in brief as revealed from the records are that during the period 1994 - 95 and 1995 - 96, the appellant had manufactured and cleared cotton yarn classifiable under sub-heading 5203.00 of the CETA, 1985 without payment of duty under SSI exemption Notification No. 1/93-CE dated 28.2.1993. 3. On 6.3.1996, the Central Excise officers visited the factory premises of the appellant and found two other sheds in the same premises of M/s. Sri Narayana Spinners and M/s. Kadri Mills. By a show-cause notice dated 5.4.1999, it has been alleged that the appellant contravened the provisions of Notification No. 1/93-CE dated 28.2.93 as amended from time to time and cleared the excisable goods without payment of duty by wrongly availing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Packaging (P) Ltd. - 2007 (210) ELT 355 6. The learned AR reiterates the findings of the Commissioner (Appeals). He submits that the Central Excise officers during the visit on 6.3.1996 detected that the appellant had wrongly availed the SSI exemption notification and suppressed the fact of getting the machinery of other unit at their premises. It is submitted that the appellant and the other unit M/s. Sree Narayana Spinners are manufacturing cotton yarn out of common machinery and sells them through the invoice of both the units in order to avail the exemption individually. It is also submitted that both the units are owned by same family members i.e. the partners are four brothers and their wives and one of their sons. So it is a family business but shown as separate units for availing the SSI notification. It is submitted that the office is common and is managed by Shri Purushothaman who is the partner in one firm and his wife and minor sons are partners in other firm. It is submitted that the appellant admitted the offence during the visit of the factory and deposited Rs.10,000/- against the demand of dues. It is also submitted that during the visit of the factory on 6.3.1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed 1426 sq. ft. 10. Agreement dated 22.2.95 between Sree Nirmal Spinners and Narayana Spinners for conversion of cotton into simplex bobbins Nirmal Spinners - supplier Narayana Spinners - job workers 11. Machineries Owned:- 3 carding machinery 1 drawing machinery 1 simplex machinery Machineries owned:- 1 Blowroom machinery 4 Carding machinery 2 drawing machinery 2 simplex machinery 1 winding machinery 8. The Central Excise officers visited the appellant's factory on 6.3.1996. It was found that there are three units namely Sree Nirmal Spinners (the appellant herein), Sree Narayana Spinners and M/s. Kadri Mills. In the present appeal, the first two units are under dispute. Shri Vasudevan, partner of Sree Narayana Spinner in his statement stated that the machines at Shed No. 1 are namely 1 blow room, 4 carding machines and 2 simplex machines, 2 drawing machines belong to Sree Narayana Spinners and the other machines namely 3 carding machines, 1 dying machine and 1 simplex machine belong to Sree Nirmal Spinners. The case of the appellant is that they used to purchase the raw materials cotton yarn and send to Sree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the units have separate registration under the Income Tax, Sales Tax Act, Directorate of Industries, Electricity connection etc. We find from the records that partnership deed and lease deed were on non-judicial stamp paper purchased on 8.12.1994 and 16.12.1994 and the contention of the adjudicating authority that these documents are afterthought, cannot be accepted. 11. The Hon'ble Supreme Court in the case of Electro Mechanical Engineering Corporation (supra) held that certain employees of three firms common and their premises adjoining each other and in the absence of evidence on record to prove mutuality of interest or flow back of funds from one unit to another, value of clearances of two units cannot be clubbed. In the case of Techno Device (supra), it has been held that maintenance of accounts of various units by a single person and at one office is not a ground for justifying clubbing, if different firms operated with its own machinery in separate premises leased from appellant, clubbing their clearances cannot be justified. It is also held that a single security guard was in charge of security of all units in no way contributed to a finding that clearances of these uni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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