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2016 (11) TMI 228 - CESTAT NEW DELHI

2016 (11) TMI 228 - CESTAT NEW DELHI - TMI - SSI exemption - use of brand name - Notification No. 8/2003-CE - exclusion of export turnover - It was alleged that these two partnership firms cannot be considered as separate legal entities for the purpose of calculation of SSI exemption and there turnover has to be clubbed together for this purpose - it has been brought out during investigation that HP and HPC do not have separate arrangement for keeping raw materials and finished goods and these a .....

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exclusion of export turnover, we find that the appellants themselves did not export the product - in the absence of categorical evidence supported by documents, the claim of the appellant cannot be considered - Appeal dismissed - decided against the assessee. - Excise Appeal Nos. 633 to 635 of 2010, 644 to 647 of 2010 - Final Order Nos. 54425 - 54431/ 2016 - Dated:- 21-10-2016 - Dr. Satish Chandra, President And Shri B. Ravichandran, Member (Technical) For the Appellants : Sh. Ravinder Singh, A .....

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. H.P. is a partnership firm having Shri Joginder Kumar Talwar and his younger brother Shri Sanjaeev Kumar Talwar as partners. M/s Himalayan Poly Colurs (HPC), also a partnership firm with Smt. Neelam Talwar w/o Sh. Joginder Kumar Talwar and Smt. Rimmi Talwar w/o Shri Sanjeev Kumar Talwar as partners of the said firm. Certain investigations were carried out by the officers of Central Excise, Delhi in December, 2007. Upon completion of investigation, proceedings were initiated against the appella .....

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xemption and there turnover has to be clubbed together for this purpose. The original authority adjudicated the case and held that the total value of clearances including clandestine clearances exceeded the threshold limit for SSI units. He accordingly confirmed duty demand of ₹ 1,28,26,111/- on HP and imposed penalty of equivalent amount on them. Further, penalties of ₹ 1,30,000/- each was imposed on all other noticees. The goods, raw materials, semi finished goods and finished good .....

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mply because the husbands are partners of HP and their wives are partners of HPC do not make these firms to be treated differently than any other independent legal entity. The benefit of SSI exemption should not be denied on the ground that they used T-P-T brand on their products. The Revenue has not proved as to person to whom such brand name belonged. In such situation, the exemption cannot be denied based on presumptions. (b) HP does not even have production capacity to produce the goods attr .....

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inished goods are not liable for confiscation under Rule 25 of Cenvat Credit Rules, 2002. They have not violated any provisions of law and as such the seizure and confiscation of the goods from their premises is legally unsustainable. 3. Ld. Counsel for the appellants relied on various decided cases in support of his assertions. 4. Ld. AR reiterated the findings of the original authority and submitted that HPC is nothing but a creation of both partners of HP. The fact that there is a common mana .....

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e created to avoid Central Excise duty. 5. We have heard both the sides and perused the appeal records. The tax liability of HP as confirmed by the original authority is mainly on the ground that HPC though shown as having legal existence is nothing but creation to avoid Central Excise duty by availing ineligible SSI exemption by HP. It is seen that HP are engaged in the manufacture of lay flat tubing and bags of plastic. HPC are engaged in the manufacture of master batches and fillers. It is an .....

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or documentation for proper receipt and transfer for a consideration of these items. 6. Further, evidences in the form of loan transaction between the partners of the firms common procurement of raw material, intermixed documentation of sale of final products were brought on record during the proceedings. The statements recorded during the investigation clearly brought out the common procurement of raw material and their consumption in these two units without any restriction. On careful consider .....

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t to one number or other of the same family. The question of financial flow back gets shadowed in a situation like this where a small group of close family members are managing the intricately connected two partnership firms involved in same business. 7. We have also perused the various case laws relied upon by the appellants. It is to be noted here that the facts similar to the present case as narrated above are not subject matter of decision in any of the decided cases. Here, we are not holdin .....

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