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2016 (8) TMI 936

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..... ings is in respect of same number of gas compressors i.e. 1022 procured by the assessee under Chapter X Procedure and alleged diversion which were the subject matter of the earlier proceedings. As such, in terms of Hon’ble Delhi High Court decision in the earlier proceedings, the allegation of diversion of 1022 pieces of gas compressor and the consequent demand of duty along with imposition of penalty cannot be upheld. Consequently, the confiscation of the seized goods is required to be set aside. Clubbing of clearances - units related to each other - Held that:- the issue stand decided in the same appellants case vide the earlier order of the Tribunal wherein both the Members agreed that the allegations of clubbing of clearances cannot .....

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..... , learned DR appearing for the Revenue, we find that the appellants M/s. Thermoking has a factory in Naraina Industrial Area, New Delhi and are engaged in the manufacture of domestic electrical appliances like geysers, washing machines, heat convectors, water coolers and air conditioners etc. During the relevant period, they were availing the benefit of small scale exemption notification No.175/86-CE. However, water coolers manufactured by them were fully exempted from payment of Central Excise duty in terms of notification No. 166/86 dated 1.3.1986. 3. It is seen that M/s. Thermoking is a proprietary unit of Shri Pradeep Khanna and is independently registered in sales tax and income tax. As a result of investigation conducted at the end .....

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..... made at the end of proprietary units of Ms Neera Khanna, which were engaged in the manufacture of air conditioner etc. 6. As a result investigations made by the Revenue, a view was entertained that the gas compressor procured by M/s. Thermoking, free of duty under Chapter X Procedure were actually not used in the manufacture of water cooler at their factory and were diverted to his wife s unit in the name and style of Flevel International, who utilized the same in the manufacture of air conditioners, which in turn were cleared clandestinely without payment of duty. Revenue also entertained a view that the clearance of the present appellant are required to be clubbed with the clearance of the proprietary units of Ms Neera Khanna who is wi .....

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..... nue has proved their case in respect of 606 air conditioner held to be cleared without payment of duty. On matter going to the Third Member for resolving the dispute, view held by Member (Technical) was agreed upon. As such, in terms of majority order of the Tribunal, the issue of clubbing of clearance was held in favour of the assessee, the demand of duty against M/s. Flevel International on the finding of clandestine manufacture and removal of Air conditioner was upheld. 8. The said majority order of the Tribunal was appealed against by M/s. Flevol International before the Hon ble High Court of Delhi and as reported in [2016 (332) ELT 416 (Del)], the majority order was set aside by resorting to minority order of the Tribunal. It is als .....

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..... emanates out of the same set of facts and circumstances and same investigations and same statements which were the subject matter of the earlier proceedings against the same charges alleging that 1022 pieces of gas compressors stand cleared by the present appellant to his wife unit by M/s. Flevel International who have utilized the same for the manufacturers of Air conditioners. As observed, the earlier proceedings were subject matter of the Tribunal and Tribunal s decision and vide majority order, the allegations as regards the diversion of 1022 pieces of gas compressor and consequent manufacture of air conditioners by M/s. Flevel International, which were cleared clandestinely were upheld. The said majority decision of the Tribunal was ch .....

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..... ot be upheld. Consequently, the confiscation of the seized goods is required to be set aside. Accordingly, we allow the appeal filed by the assessee by setting aside the demand of duty, imposition of penalty, as also confiscation of the goods. 12. As regards the Revenue s appeal against that part of the impugned order of Commissioner vide which he has vacated the show cause notice as regards the clubbing of clearances, we note that the issue stand decided in the same appellants case vide the earlier order of the Tribunal wherein both the Members agreed that the allegations of clubbing of clearances cannot be upheld. Reference is made to the decision reported as [2013 (293) ELT 712 (Tri-Del)], we also note that the Revenue s appeal agains .....

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