TMI Blog2017 (6) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... lude the value of clearances of one arm factory belonging to the same manufacturer. In the facts and circumstances of the present case, we are inclined to upholding the findings of the adjudicating authority that the clearance of two firms are to be clubbed for the period 2006-2007 to 2008-2009 and the benefit of SSI exemption is to be determined barringly. Clandestine removal - goods were being cleared without payment of duty on the basis of only delivery challans/ kachi purchis - Held that: - the total demand for central excise duty has been calculated by including the value of clearances evidenced by the kachi parchis in addition the turnover of both firms have been clubbed. The impugned order is set aside and remanded to the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upon completion of investigations, SCN dated 20.10.2011 Was issued proposing to (i) Club the value of clearances made in the name of ASC as well as Jain and to restrict the benefits in terms of SST Notifications No.08/2013 dated 01.03.2003. (ii) Value of clearances made without accounting finished goods and clearing them clandestinely without payment of duty also to be included. (iii) In terms of the above Central Excise duty amounting to ₹ 1,58,42,752/- was demanded along with interest. Penalty of an equal amount was also proposed. 3. Upon completion of adjudicating proceedings, the Ld. Commissioner, vide the impugned order confirmed all the above proposals and also appropriated the amount of ₹ 10 Lakh voluntarily deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the basis of several incuplatory statements given by employees of both firms as well as those given by Mr. Pawan Jain as well as Mrs. Jain. However, more struck the statement passed on which the Revenue s case has been built by Mr. Pawan Jain after his arrest. The Hon ble ACMM has severely criticized the manner of investigation and has recorded that the statements do not bear the signatures of the officers who recorded those statements accordingly, it was submitted that such statements have no evidentiary value and should be disregarded. Further, cross examination sought by the appellants of the witnesses whose statements have been used was denied by the adjudicating authority. In view of the above, the charge of clandestine clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back between Jain and ASC. It has further alleged that Sh. Pawan Jain had allegedly suppressed the aggregate value clearances and bifurcated the clearance between the two firms in order to keep the turnover within the prescribed limits for SSI Notification 08/2003 dated 01.03.2003. On the basis of kucha parchis and delivery challans recovered and the statements recorded, allegations of clandestine clearance without payment of duty has also been made and in the total demand, such value of clandestine clearances have also been included. 9. At the outset, we examine the proposal to club the value of clearances of the two firms. The Hon ble Supreme Court in the case of Modi Alkalies Chemicals Ltd. - 2004 (171) ETL 155 SC has laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two firms establishes that there was mutuality on interest between the two firms and that the two were inter joined in their management and flow of funds. 12. In terms of the para 2 of Notification 8/2003 dated 1.3.2003, the correct vale of clearances intended to nil rate of duty should include the value of clearances of one arm factory belonging to the same manufacturer. In the facts and circumstances of the present case, we are inclined to upholding the findings of the adjudicating authority that the clearance of two firms are to be clubbed for the period 2006-2007 to 2008-2009 and the benefit of SSI exemption is to be determined barringly. 13. Now we turn to the charge of clandestine clearances. Various employees of both firms hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner in this adjudicating order. For the above reasons, we are of the view that the charge of clandestine clearance upheld by the adjudicating authority on the basis of these statements cannot be upheld and needs to be set aside. 15. We find from the impugned order that the total demand for central excise duty has been calculated by including the value of clearances evidenced by the kachi parchis in addition the turnover of both firms have been clubbed. The impugned order is set aside and remanded to the original adjudicating authority with the direction to re-quantify the demand by excluding those attributable to clandestine clearance. However, the clubbing of the value clearances of both the firms is upheld. 16. The duty d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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