9911796707
TMI Blog2016 (3) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant facts of the case, in brief, are that M/s Chamunda Engineering Works (in short "the Assessee"), Proprietress Smt. Jasuben Babubhai Mistry, wife of Shri Babubhai Mistry, was engaged in the manufacture and sale of Ferrous & Non-ferrous Casting Machinery used in the Sugar Mills, Bio-gas Plants and Paper Mills. There were other firms M/s Hitech Engineers & Fabricators (in short M/s Hitech, Proprietor Shri Umeshbhai Mistry, son of Shri Babubhai Mistry), M/s Bhavani Engineering Works (in short M/s BEW, Proprietor Shri Babubhai Mistry), and M/s Chamunda Engineering Pvt Ltd, a Private Limited Company, incorporated under the Companies Act, 1956 (Smt. Jasuben B. Mistry and Shri Babubhai M. Mistry both are the Directors). All were situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f equal amount of duty on the Assessee. It has also imposed penalties of Rs. 2 lakh each as follows:- a) M/s Chamunda Engineering Pvt. Ltd. b) Shri Babubhai Mistry, Director of M/s CEPL and Proprietor of M/s BEW. c) Smt. Jasuben B. Mistry, Proprietor of the Assessee and Director of M/s CEPL. d) M/s Hitech e) M/s BEW. 4. The learned Advocate on behalf of the Appellants submits that the clubbing of clearance value of the proprietaryship firm with the private limited company is not permissible under the law. He relied upon the decision of the Tribunal in the case of M/s K. A. Arunachalam Printing Div. Vs CCE Madurai - 2001 (133) ELT (Tri-Che). He further submits that all these units are holding separate Sales Tax registration, Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll units were working in the same premises. There were no electricity meters in the name of M/s BEW, M/s CEPL. He further submits that all the units were having common facilities. It is revealed from the financial transaction between the various units that there was the transaction of the funds from one unit to the other without raising any interest/debit note or any condition. He submits that only the Assessee was having facility for manufacturing and the other units were having no manufacturing facility. He submits that the invoices were issued by all the units and therefore, the Adjudicating authority rightly imposed penalty on all the units. 6. After hearing both the sides and on perusal of the records, we find that the main contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating authority. It is submitted that these lists were submitted before the Commissioner (Appeals). On a query from the Bench, the learned Advocate failed to place any evidence that these documents were placed before the Commissioner (Appeals). We find that the search was conducted in 2005 and the impugned order was passed in 2008. But the Appellant had not placed these documents before the lower authorities which are related to the period 1990 to 2001. The Assessee has not given any reasons as to why they have failed to disclose these evidences before the lower authorities and therefore, such evidence cannot be accepted before the Tribunal, at a belated stage. To sum up, it is evident from the records that there was no manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws would be applicable in the facts and circumstances in the present case, as already discussed above. 9. We agree with the submissions of the learned Advocate that imposition of penalty on the dummy units cannot be sustained. According to the Revenue, the other units are dummy and therefore, imposition of penalties on the dummy units cannot be sustained. However, we find force that Shri Babubhai Mistry, Director of M/s CEPL and Proprietor of M/s BEW and Smt. Jasuben B. Mistry, Proprietress of the Assessee and Director of CEPL were involved directly in this evasion of duty. The learned Advocate submits that the quantum of penalty is excessive, which is required to be considered. 10. In view of the above discussion, we modify the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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