TMI Blog1984 (9) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this appeal are that Notification No. 176/77-C.E., dated 18-6-1977 as amended grants exemption in the matter of Central Excise duty on the basis of clearances. There is no dispute that if the clearances of the appellants and two other concerns described above are clubbed together, they would exceed the stipulated limit under the notification, aforesaid. The proceedings against the appellants commenced as a result of search dated 21-2-1979 by the Officers of the Directorate of Revenue Intelligence (Anti-Evasion Wing), Central Excise, Bombay. The Officers after the search and investigation felt that the clearances made by the other two firms viz. M/s. Babu Lal and M/s. Hind were for and on behalf of M/s. Jagjivan Dass. Show Cause Notice dated 14-8-1979 was then served on the appellants M/s. Jagjivan Dass, M/s. Babu Lal and M/s. Hind. The three firms filed replies denying the allegations and contended that the firms were separate and distinct and their clearances could not be clubbed. The Collector after complying with the usual procedure demanded Central Excise Duty and imposed penalty, as already described above. 3. Aggrieved with the order, the appellants filed Revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tricted only to a period of 6 months preceding the date of show cause notice in which case it would work out only to ₹ 5,568.43. He also argued that the three firms were separately registered and had separate income-tax and sales tax numbers, separate SSI registeration numbers, separate approved site plans, line of products of all the three firms is by and large separate. He also argued that disputes between employees and employer were separately settled by the three management of the firms and Union of Employees. No employee is common in three firms. He also stated that there is no allegation that the firms were on papers, only and the partners were name lenders; the firms were living firms and actively were firms. Shri Sahni, learned Advocate for the appellants, relied on the following decisions in support of his arguments that the clearances of the three firms could not be clubbed for determining eligibility of concession under Notification No. 176/77-C.E., dated 18-6-1977 : (i) Chanderasekar Bharathi Weaving Mills and Ors. v. A.C.C.E., Sivakasi and Anr. 1981 E.L.T. 62; (ii) Jaswant Sugar Mills Ltd., Meerut v. Union of India and Anr. 1981 E.L.T. 177 ; (iii) Jay En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court (S.C.) by way of revaluation of matter on record. The Tribunal is to evaluate the facts itself and therefore the decision in which the Supreme Court declined to interfere with order or conclusion, amply supported by evidence on record, on the ground that it was vitiated by any legal error or cause injustice to the party concerned, may not be strictly helpful. For decision in this case if on facts and law it be found that the three firms were distinct and separate, their clearances should not be clubbed together. Para 21 of the findings of the Collector shows that the Collector based his decision on the following 9 pieces of evidence or circumstances : (i) All the three factories are situated in one compound ; (ii) they have a common telephone ; (iii) some of the partners of the three concerns are common ; (iv) that the goods are stored in a common storage place ; (v) the trade mark Jiven belonging to Jagjivandas Company is used by Babu Lal Bhoti Lal Company ; (vi) the office premises in Bombay are common ; (vii) that some of the machinery belonging to Jagjivandas Company is used by other two concerns; (viii) that a letter was written to the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge of the Excise authorities when they approved the plans. This circumstance should therefore be excluded. About Item 3, some of the partners of the three concerns being common, it has to be remembered that the three concerns were registered well before the Tariff Item 68 came on the Statute Book and before the subject notification in question came into force. There are a number of decisions that commonness of partners would not invariably show that the clearances of the firms are on behalf of one another. Considering all the circumstances, we do not attach much importance to this piece of evidence. About Item 4, goods being stored in common storage place, Shri Sahni challenged this finding, stating that seizures were made from different places. It is wrong to say that they were stored in a common place. Perusal of the orders of the Collector shows that though he referred to this circumstance as a piece of evidence, but he has not expressed any opinion about the same in the discussion part of his order. This circumstance therefore cannot be used for basing the finding. About the 5th circumstance i.e. Trade Mark Jivan belonging to M/s. Jagjivan Dass being used by M/s. Babu Lal Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from the record and in absence of the same it is not possible to appreciate this piece of evidence. While frequent use might raise a strong inference against a party but from stray use such conclusion may not be possible to be drawn. In the absence of proper particulars we do not find this circumstance conclusive against the appellants. Shri Lakshmi Kumaran, learned S.D.R. argued that there was free mutual flow of finance between the three concerns without charging any interest and therefore it had to be held that they were under the same management. Shri Sahni, learned Advocate for the appellants in this connection explained that such commercial transactions were common in trade circles. In any case the partners in the three firms were close relatives and these transactions were accounted for in the accounts books. In our opinion these are their duty as common mutual transactions between three firms and the mere fact that they did not charge interest against one another on these transactions when they are doing so against others could not be a conclusive circumstance to find against the appellants that their clearances were for and on behalf of one another. As to Shri La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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