TMI Blog2018 (3) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal dismissed - decided against Revenue. - Appeal No. E/282 & 101/09 - A/85397-85398/2018 - Dated:- 26-2-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri N.N. Prabhudesai, Supdt. (A.R.) for Revenue Shri M.H. Patil, Advocate for respondent ORDER Per : Ramesh Nair The present appeal has been filed by the Revenue against the Orderin-Appeal No. YG/23-26-Th-II/ 08 dated 30.10.2008 passed by the Commissioner (Appeals), Central Excise, Mumbai-Zone-I. 2. The facts of the case are that M/s Gaylord Engineers (GE) and M/s Gaylord Pharma Systems (GPS) are engaged in the manufacturing of pharmaceutical machines falling under Chapter 84 of the Central Excise Tariff Act, 1985. The units were issued Show Cause Notices alleging that they are manufacturing goods bearing same brand name i.e GAYLORDwhich is affixed on product. That Shri L.B. Yadav is proprietor of M/s Gaylord Engineers whereas his wife Smt. Geeta Yadav and brother Shri S.B. Yadav are partners of M/s Gaylord Pharma Systems. Both the units have common corporate office and were availing value based exemption without obtaining central excise registration. That both the units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inputs and execution of work orders, monitoring recovery etc. The workers of both the firms at Gala No.22 23 situated at Vasai Road are commonly used by both the firms, which has not been denied. He submits that there has been transfer of funds between the two units. Shri L.B. Yadav, in his statement has also clarified that whenever there is shortage of funds in one company, fund is transferred from the other company. That entries were found in the ledger of accounts of both the units which shows that payments against sale by one unit was received by the other unit. The fact that both the units are manufacturing same goods, using same brand name without charging any royalty, both the units are actually controlled by same corporate office and both the units have same (common) machineries, premises, workers are evidence to prove that the second unit of M/s Gaylord Pharma Systems was created in order to wrongly avail benefit of Notification No. 8/2003. That both the entities are to be considered single entity for the purpose of levy of duty. He relies upon following judgments in support of his contention:- (i) CCE, Mumbai-V Vs JFoundation 2015 (324) ELT 422 (SC) (ii) Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Hon ble Supreme Court reported in 1989 (41) ELT A-133 (SC) 5. Ghaziabad Organics Ltd 2016 (344) ELT 965 (T) 6. Poona Radiators Oil Coolers 2017 (347) ELT 320 (T) 7. Suchita Steels (India) Ltd. 2015 (327) ELT 378 (T) 8. Kich Industries 2013 (290) ELT 434 (T) e further HHH 5. We have gone through the relevant records and submissions made by both the sides. We find that Show Cause Notice has raised separate demands against both the Respondents thus accepting the separate entity of both the firms. Clubbing of value clearance of the firms without disclosing which of the units is principal and which of the units is dummy is not sustainable as when the clearances are sought to be clubbed it has to be shown as which entity does not have separate existence and hence its clearances are to be clubbed to the clearances of principal unit. Our views are based upon the Hon ble Apex court judgment in the case of Gajanan Fabric Distributors Vs C.C. Pune 1997(92)ELT 451 SC , wherein it was held that - The order under appeal was passed by the Central Excise and Gold (Control) Appellate Tribunal. The Tribunal found that the show cause notices issued to the assessees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the show cause notices afresh. The parties shall be at liberty to file additional documents, if they so chose. It is made clear that the remand is now unlimited and the matters shall be decided without reference either to the order of the Tribunal under appeal or the earlier order of the Collector. 5. No order as to cost. 6. We find that the show-cause notice also alleged that since both the units are manufacturing goods with a common brand name (Gaylord), they are not entitled for the benefit of value based SSI exemption notification 8/2003-C dt 1.3.2003. We find that the name Gaylord is not a registered brand name of any of the units. Further none of the units has claimed the ownership on such name. In such case when the word Gaylord is part of their name, it cannot be said that the Respondents are manufacturing goods under a brand name of another person. Our views are based upon the Tribunal judgment in case of Pethe Breake Motors Ltd. Vs. Commissioner of Central Excise, Pune (2005 (179) ELT 57 (Tri. Mumbai) wherein the assessee were manufacturing goods with the mark Pethe, which was a family name and other unit in the same group was also using the said name. Since, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e machines possessed by M/s Gaylord Engineers and M/s Gaylord Pharma Systems were different and the list of the same were also produced before the Lower authority. No evidence has been brought out on record by the Revenue to show that the said machines were not capable of manufacturing the goods. In such case separate manufacturing facility at each of the units cannot be denied. The Revenue has contended the transfer of funds by one unit to another and receipt of payment of one company by the other or tax liability of one unit paid by the other shows that the unit are one. We find from the impugned order that there were only few transactions wherein the entries pertain to one unit were recorded in the record of the other unit. Such transactions include payment of bill of M/s Gaylord Pharma Systems amounting to ₹ 28970/- made by M/s Gaylord Engineers and vice-versa ₹ 16180/-. There is also one debit entry of ₹ 63864/- and credit entry of ₹ 58,51,78/- pertaining to M/s Gaylord Pharma Systems in the books of M/s Gaylord Engineers and there are some other such events also. We find that these transactions are only few wherein one unit borrow funds from the other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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