TMI Blog2017 (3) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why they should not be termed as a dummy unit. That show cause notice was not issued. However, apart from this, even on merits there was no material to hold that M/s. Neha Refrigeration was a dummy unit. That is how the Tribunal proceeded and once it proceeds on this line, we do not see any basis for the apprehension that the Tribunal's understanding of the legal provision is flawed. The Tribunal will not and necessarily in every matter of this nature proceed to hold that a notice to the sole proprietor would not suffice in law and in addition an independent notice should be addressed and to the sole proprietary concern - We do not see how the substantial question, as framed, would arise from any factual findings in the Tribunal's Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t meet the requirement of law. A notice and independently be addressed to the sole proprietary concern. Addressing a notice to the sole proprietor does not serve the purpose of law. 5. We do not see how the Revenue can entertain this apprehension and in every given case. 6. The respondents before us, and particularly the second respondent, an individual, were proceeded against on the allegation that they are engaged in the manufacture of parts of air conditioning and refrigerating appliances. These goods fall under Chapter Heading Nos.84.15 and 84.18 of the Central Excise Tariff Act, 1985. During the period under consideration from 3.9.1993 to 21.7.1997 they manufactured and cleared the said goods without payment of duty in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest and penalty. The penalty that was imposed on respondent No.2, natural person Shitala Prasad Sharma, was for violating Rule 209A of the Central Excise Rules, 1944. 9. An Order-in-Original was passed on these allegations and holding them to be proved. The penalty was imposed on Shitala Prasad Sharma for the acts and held to be proved in terms of para 45 of the Order-in-Original. That Order-in-Original was passed on 29.12.004. 10. Aggrieved and dissatisfied with this, appeals were brought before the Tribunal. The appeals were filed by M/s. Sapna Engineering. One of the grounds and raised in the memo of appeals was that the Commissioner ought to have gone through the entire record, and particularly the materials which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich duty had been demanded were cleared in the documents of M/S. NEHA REFRIGERATION. However, No Show Cause Notice has been issued to M/S. NEHA REFRIGERATION asking them to show cause as to why M/S. NEHA REFRIGERATION should not be considered a dummy unit of the appellants. The Ld. Advocate for the appellants have referred to the Judgments cited above in the case of Ogesh Industries, K.R. BALACHANDRAN and Poly Resins in support of his contention that the Show Cause Notice is vitiated and bad in law as no Show Cause Notice was issued to M/S. NEHA REFRIGERATION and therefore M/S. NEHA REFRIGERATION did not have opportunity to establish genuineness of the contents recorded in the documents. Therefore, the proceedings should fail on this accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the sole proprietary concern has an existence independent of the sole proprietor. This is a complete misreading of the Tribunal's factual findings. 14. The Tribunal held that the central excise duty being what it is, namely, a duty on manufacture, and once the Commissioner concluded that the goods were manufactured and cleared through a fictitious unit which was very much capable of carrying on business and indeed carried on business, then, it should have been independently proceeded against by issuing a notice and calling for its explanation. Then that would proceed on the footing that it manufactured excisable goods. It manufactured excisable goods and yet it allowed the goods to be cleared as belonging to some other unit by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appreciation and appraisal of the documentary and oral evidence by the Commissioner was faulted by the Tribunal. Its detail finding would indicate that show cause notice should have been issued to M/s. Neha Refrigeration asking them as to why they should not be termed as a dummy unit. That show cause notice was not issued. However, apart from this, even on merits there was no material to hold that M/s. Neha Refrigeration was a dummy unit. That is how the Tribunal proceeded and once it proceeds on this line, we do not see any basis for the apprehension that the Tribunal's understanding of the legal provision is flawed. The Tribunal will not and necessarily in every matter of this nature proceed to hold that a notice to the sole propri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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