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TMI Blog2015 (10) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... richi and Thatchanallur. 3. Whether there is any common managerial or financial control exercised by ACF or other units and whether any financial flow-back or mutual funding exist amongst the units. 3. So far as issue No.1 is concerned, his conclusion was that just because the trailer was parked inthe premises of ACF that does not lead to a conclusion that ACF manufactured the trailer. Most strangely, he ignored the entire evidence what that is culled out by Revenue in their grounds of appeal bringing out categorically about placement of order, no manufacturing facility available with Rajagiri & Co. (RG). So also statement recorded from different persons to demonstrate that ACF was intimately connected with manufacture. ACF supplied the tractor. Therefore it brought the trailer to its campus when RTO was not present for grant of registration. This simply leads to the inference that had ACF not been the concern, it would not have brought trailer to its premises and provided space to that in its premises. It was manufacturer of excisable goods. Apart from these observations, there are various grounds raised by Revenue in the ground of appeal which has logical reasons to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ravindran, Manager of SA, Shri. N. Annamalai, Proprietor of ShanmugapriyaIron Works, Shri. M. Chellaperumal, Proprietor of Vinayaga Iron Works, Shri. A.N. Avudai Nayagam alias Karthik, Store Keeper of ACF and Shri. S. Perumal, the buyer of the seized trailer were incriminating. Some of the statements were retracted at a later stage. In the case of Collector of Customs (Prey.) Vs Kamala Ranjan Saha [1990 (31) ECR 2 7 (T)], the Tribunal has observed that the affidavits produced at a later stage do not have much evidentiary value. In the case of U.K. Machine Tools Pvt.Ltd. Vs CCE, Chandigarh, the Tribunal has observed that 'We find that the retraction was very late and no satisfactory explanation had been adduced by the witnesses for such a long time gap in retracting their version if the initial version was not correct". In said case, the Tribunal has not accepted the retracted version. In the subject case, the Commissioner (Appeals). Trichy has ignored the statements recorded earlier. He has taken into consideration only the retracted versions, though the retraction was very late and no satisfactory explanation had been adduced for such a long time gap in retracting their versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a visit to the declared premises of RG located at No.3-A,Nethaji Road, Kurichi on 17.12.97, they found the premises locked. The premises was thereafter opened by the ownerShri.Mohammed Tharnbi and the officers did not find any machinery or equipment for manufacture of trailers. He also informed them that the premises had remained vacant after September 1996. Shri Annamalai, owner of MIS Shanmughapriya Iron Works in his Statement dated 06.01.98 deposed that, he was manufacturing trailers for RG on job-work basis since inception; as he fwd no convenient space, the manufacturing activities were carried on at No.3-A, Nethaji Road, Kurichi (the premises of RG); and there had been no manufacturing activity for the past one year since RG vacated the premises. However at the time of cross-examination he said that after September 96 he was manufacturing trailers for RG at his premises. In the Statement given by him on 06.01.98, he was categoricalin his assertions that the manufacturing activity was carried on by him only in the premises located at No.3.A. Nethaji Road. Kurichi (held by RG) and there had been no manufacturing activity by him after vacation of the said premises by RG. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or by Smt Saradhamani. In his Statement dated 05.01.98 Shri. Ravindran, inter alia, said that, in the application for renewal made by them to the Inspector of Factories every year, the mention related only to repair and service of tractor and trailer ; and the Certificate issued by the Consulting Engineer would show that SA had machinery onlyfor repair of tractor and trailer. These versions were accepted by Smt.Saradhamani in her Statement dated 05.02.98. The copy of design approval dated 03.01.96 granted by the Transport Authority was merely a design approval for trailer and it did not throw light as to whether the unit SA possessed facility to manufacture trailers. IfinfactSA was really engaged in themanufacture of Trailers then why renewal of licence should be restricted to repair and service of tractor and trailer alone was not known. The Certificate issued by the Consulting Engineer affirmed the fact that SA had no manufacturingfacilities for trailer. Even a copy of the Certificate issued by the Commercial Taxes Department and placed on record showed SA only as a dealer. It nowhere indicated that SA was a manufacturer of trailers. The unitSA remained only on paper and the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was doing job work for ACF and also welding work for ACF and RG, the welding work was normally done by him at the workshop of ACF, he would not engrave the chassis Number on the trailer since he did not know for whom it was meant; the chassis number would be engraved in the Tirunelveli Junction workshop of ACF and the payments would be received only in cash from ACF; (as per the version of Shri S. Perumal, buyer of the impugned chassis, in his statement dated 06.02.98) he held a guarantee card issued by ACF for the impugned trailer (shown to have been manufactured by RG) ; and despite the quantum of consumption of electricity being higher during the year 1995-96 compared to 1994-95 the production of trailers shown in the accounts of ACF was much less. 6. The adjudicating authority has mentioned in his Order-in-Original that "this is coupled with the fact that there could have been no manufacture of trailers by RG and SA". The Commissioner (Appeals), Trichy has given undue importance to the language used by the adjudicating authority. The three units were functioning as a homogenous entity without any distinction whatsoever. In view of CEGAT's ruling in the case of MIS U.K.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant, it is not possible to conclude that they were separate entity. In the light of the fact of common managerial control, the absence of evidence of specific flow back from one to the other does not advance the appellants case. Such common financial control and management would necessarily not present features of flowback; it would, in fact, render such a requirement unnecessary. 8. The contention of the assessee that in as much as AA had been excluded from the purview of the proceedings, the other forms RG and SA should also be freed from the case did not have any legal support. 881 declaration filed by them were nothing but mis-declarations for the purpose of cheating the department. Under the said circumstances, the proviso to Section 11 A (1) was rightly invokable. By their acts of commission in the offence committed by ACF, Shri. A. Natesan, Proprietor of Arasan Company and Smt. Saradhamani, the proprietrix of SA and Partner of RG had rendered themselves liable for penalty. The charges leveled in the three Show Cause Notices were sustainable. Hence, the Order-in-Original of the adjudicating authority is legal and proper." [Emphasis Supplied] 6. When the record i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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