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The Commissioner of Central Excise Versus Customs, Excise And Service Tax Appellate Tribunal, M/s Devi Silicates Pvt Ltd

2015 (8) TMI 635 - MADRAS HIGH COURT

Denial of SSI Exemption - Clandestine Removal and Deliberate Fragmentation of manufacturing activities - clubbing of clearance - tribunal decided in favor of assessee on technical ground - Held that:- Whether the failure to challenge the finding in favour of Shri M.S. Jain in a connected matter would operate on the principle of res judicata on the Tribunal from examining the other cases on merits - Held that:- Records of the various group companies have been perused and on the basis of that, the .....

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It is the specific case of the department that the clearances of all these units and the proprietory concerns should be clubbed together for the purpose of denying the benefit of notification. However, the Department can always sustain its allegations, de hors the statement of M.S.Jain, if there are other materials to support its case. Merely because the case of M.S. Jain has not been appealed against, it does not, and would not, dilute the case of the Department. - Tribunal was clearly i .....

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the Revenue/appellant is before this Court by filing these appeals, 21 in number. These appeals were admitted by this Court, on 11.08.2005, on the following substantial question of law:- "Whether the failure to challenge the finding in favour of Shri M.S. Jain in a connected matter would operate on the principle of res judicata on the Tribunal from examining the other cases on merits? " 2. The brief facts of the case leading to the filing of the present appeals are as follows : " .....

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ving Sodium Silicate without payment of duty and by wrongly availing S.S.I. Exemption under Notification No: 175/86 as amended, the Directorate General of Anti-Evasion (CE) Chennai, conducted search in their factories, common registered office and the residential premises of persons connected with their activities, certain records were recovered and statements were also recorded from the concerned individuals. On the basis of the search, two charges viz. (i) Clandestine Removal - different units .....

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om 1.4.88 to 31.12.92 1. M/s. Devi Silicates Pvt. Ltd. Shri. S.K. Jain and Shri. Adish Jain 2. M/s. Andavar Silicates Pvt. Ltd. Shri. B.M. Bharadwaj, Shri. Rufus Fernando and Smt. Patricia Rufus 3. M/s. Kiran Silicates Pvt. Ltd. Shri. S.K. Jain, Shri. P.K. Jain, Shri. K.K. Jain and Shri. B.M. Bharadwaj 4. M/s. Ezhil Chemicals Pvt. Ltd. Shri. S.K. Jain & Shri.D.K. Jain 5. M/s. Nannilam Silicates Pvt. Ltd. Shri. P.K. Jain & Shri.Adish Jain 6. M/s. Sunrise Silicates Pvt. Ltd. Smt. Manju Jai .....

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ah Basha and Shri. Anand Sharma 13. M/s. Pavul Silicates Pvt. Ltd. Shri. S.K. Jain, Shri. Rufus Fernando and Shri. P.N. Sugumaran SOLE PROPRIETORY CONCERNS : (i) M/s. Sri Kiran Chemicals at Madras with Smt. Kiran Jain wife of Shri. M.S. Jain as the Proprietrix. (ii) M/s. Prem Chem Co., Madras with Smt.Prem Jain wife of Shri. S.K. Jain as the Proprietrix. (iii) M/s. Kanyakumari Silicata Industries at Nagercoil with Shri.P.K. Jain, elder brother of Shri. M.S. Jain as the proprietor. (iv) M/s. Sili .....

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eel Kumari Jain as the Proprietrix. It is seen that all the above units were under the Proprietorship of Shri.M.S. Jain and his family members or they were one of the Directors in the units. (iii) Prima facie, it appeared that one M.S. Jain aided by S.K.Jain master minded the alleged offence along with other Directors and their family members. The show causes notices were issued for recovery of duty and for penalty under Rule 9 (2), 173 Q, 52 A and 226 of Central Excise Rules, 1944 on each of th .....

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Shri. Rufus Fernando, Excise - in - charge 11. Shri. M.S. Mahadevan, Excise - in - charge 12. Shri. M. Ganesan, Accountant. (iv) Replies to show cause notices were submitted and based on the replies given by various individuals, the adjudication order came to be passed. The adjudicating authority dealt with the charges in the show cause notice one after another by placing reliance on the statement of persons recorded in the course of investigation, the details of which are stated in paragraph 56 .....

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, the respective allegations and the defence put forth by the assessee were discussed in paragraphs 49 to 54 of the adjudicating authority's order. The final conclusion arrived at by the said authority is as follows : "55. From the above it is clear that the goods were either cleared on payment of duty or on job work basis under Rule 57 F (4) and therefore, clearances of Sodium Silicate / Soluable Glass without payment of duty is not conclusively established by any documentary evidence .....

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uty and the said charge had not been rebutted by the assessee as the said goods were accounted for in their private records but a lesser quantity was reflected in the statutory records. .... .... .... 64. The above units are therefore liable to pay duty at the appropriate rate on the above quantities of Sodium Silicates as the same were cleared without payment of duty as has been established with reference to the private records recovered from the units. The customers who had received the said g .....

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limited companies and 8 proprietory concerns, the Department filed an appeal and the Tribunal came to pass the following order on 14.07.2004 in Appeal Nos: E/956 to 976 of 2000: "6. .... .... ... ... In the instant case, as we have already noted, no appeal has been filed by the department against Shri.M.S.Jain despite the fact that what was dropped by the Commissioner was, mainly, a proposal for clubbing of clearances of the 21 units which was squarely based on investigative findings pertai .....

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hri.M.S. Jain. In the context of defending the invocation of the larger period of limitation in the show cause notices for demanding duty from Shri. M.S. Jain and the 21 units, the Board again focused on the role of Shri. M.S. Jain and held that it was Shri. Jain who suppressed facts to evade payment of duty. All the grounds raised in the review order have found a place in the memoranda of Appeals before us. These appeals are against an order (of the Commissioner) which neither treated Shri.M.S. .....

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e appeals of the Revenue, wherein clearances of goods by the 21 units are sought to be clubbed for the purpose of denial of SSI exemption on grounds integrally connected with the role of Shri. M.S. Jain, cannot be maintained for want of appeal as against Shri. M.S. Jain." 4. According to the Tribunal, in the absence of any appeal being filed against the said M.S.Jain, the other appeals filed on the ground of integrally connected with the role of Shri.M.S.Jain, cannot be considered and on th .....

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