TMI Blog2015 (10) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... tter being 13 years old, it is not at all desirable to keep that pending. Accordingly, examining the record and also taking assistance of Revenue, both the appeals are disposed in the manner indicated below. 2. Revenue is aggrieved by the order passed by learned Commissioner (Appeals) on 30.4.2002 reverting the adjudication order. He framed the following issues for his consideration:- 1. Whether the seizure of trailer RG 176 found parked in the premises of Arasan Company Firm (ACF) on 16.12.97, would lead to infer that the said trailer was manufactured by ACF. 2. Whether M/s. Rajagiri Co. (RG) and Saradha Agency (SA) are independent manufacturers of trailers in their respective units at Kurichi 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty . If the facts and circumstances of the subject case are seen in totality, the units ACF, RC and SA merge into one common manufacturing entity, namely ACF. The Commissioner (Appeals), Trichy without considering the totality of the facts and circumstances of the case has passed Order-in-Appeal on the basis of some isolated facts. ACF was engaged in the manufacture of trailers, but in order to avail SSI exemption separately RG and SA were floated solely for the purpose of evading payment of duty. 2. The statements given by Shri. A. Natesan, Proprietor of ACF, Smt. N. Saradhamani (w/o Shri. A. Natesan) Proprietrix of SA and partner of RG, Shri. V Nambi, Manager of ACF, shri. B. Amaresan, Manager of RG, Shri. G. 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 affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply of RG Trailer, the draft for payment favouring RG was handed over to one individual of ACF; the information that the vehicle was ready for delivery was given by ACF. Further, the said trailer has been seized at the premises of ACF. The guarantee Card of ACF has been issued to the said trailer. (ii) Shri. B. Amaresan, Manager of RG in his statement dated 23.12.97 stated that the suppliers ofraw materials to RG, SA and AA and buyersof trailers from RG have addressed ACF for payments for the pending bills andfor rectification ofdefects in the trailers supplied by RG. (iii) The fact shown at (i) and (ii) above, show that all the three units were one and the same in the perception of the public. (iv)When the officers made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for RG was carried on by Shri Annamalai, Proprietor of M/s Shanmugapriya Iron Works was merely concocted to deceive the department with the sole objective of evading payment of duty. The trailers shown and alleged as manufactured by RG were in fact manufactured in the premises ofACF. (v) Shri G. Ravindran in his statement dated 15.12.98 admitted that the premises occupied by SA were owned by ACF and the power connection was also in the name of ACE In his statement given on 05.01.98, Shri Ravindran deposed that Shri Natesan, proprietor of ACF would at times check the over time accounts of SA and would sign the over time register in as much as the proprietrix Smt Saradhamani is his wife. Those facts had not been denied either by Shri Natesan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance and he would also offer his valuable suggestions born out of his business experience for all the units ; the stock position of other units was maintained by ACF so as to know the physical stock and also to avoid pilferage ; the materials required for RG and SA were issued through gate passes signed by the Manager of ACF Shri V. Nambi ; (as per the deposition of the store-keeper in his statement dated 28.01.98) the entries relating to raw materials for all the units were made only in one register at ACF, and the raw materials received in the name of one company were issued to any other unit amongst the group ; (as per the deposition of Shri M.Chellaperuamal, Proprietor of M/s Vinayaga Iron Works) he had earlier worked in ACF for 10 years, he 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer, they were dependent on each other, in their operations, dominant role was of Shri R.K.Luther, Proprietor of ' The facts and circumstances dealt with in the order of CEGAT bear close relation to the facts of the subject case. 7. In the case of M/s Akay Filtips Pvt. Ltd., reported in 2000 (122) ELT 761 (T), the CEGAT has observed that The Commissioner finds this to be correct and concludes the unity in the financial management of both these companies. He further finds that the electricity bills, water connection, chief executive and other managerial staff or Asahi were in fact provided by Akay. In view of these factors, and particularly the common financial control for which there was no answer by the advocate for the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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