TMI Blog2018 (5) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for clubbing - Held that: - both TAPL as well as 3D have separate existence in the eyes of law. The former is a Private Limited company whereas the latter is a Partnership firm. The goods were imported under both names and have also been sold under both names, inspite of the fact that the goods were mixed up at the godown and have been sold on the basis of price list circulated by TAPL - It is settled position of law that in the absence of mutuality of interest and financial flow back from one firm to another, clubbing of clearances is not permissible merely on the ground that both firms are in the common premises and affairs of all firm are looked after by one person. Since TAPL as well as 3D have separate existence and have separate registration for VAT, Income Tax etc each one will be entitled to the benefit of SSI exemption separately. The case is required to be remanded to the Adjudicating Authority to work out the demand denovo separately from TAPL as well as 3D after extending the benefit of SSI exemption separately to the two companies - appeal allowed by way of remand. - Ex. Appeal Nos. 50423, 50426, 50436 & 50437 of 2017 - Final Order Nos. 51711 – 51714/2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; 4. The investigation carried out by the Department concluded that both TAPL as well as 3D have- (i) Imported various goods bearing their brand name in which the MRP was not marked. Such goods, after importation were affixed with MRP sticker and sold in the local market; (ii) Some consignments were imported in which MRP stickers were already affixed but post importation new MRP stickers were affixed and goods were sold in the local market; (iii) Goods were procured from indigenous manufacturers, the MRP was changed and such goods were also sold at the enhanced MRP; 4.1 It is the allegation of Revenue that the activity of changing the MRP/ affixing MRP stickers in their godown will fall within the deeming provision in Section 2(f) (iii) and consequently, Central Excise duty is required to be discharged in terms of Section 4A of the Central Excise Act, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om June, 2012, the practice was changed and the business model underwent a change. C F agents and super stockists were appointed on commission basis and pricelists was circulated. Hence, he submitted that prior to June 2012 the demand raised by the Revenue is not sustainable. (b) The entire demand has been worked out on the basis of various price lists all of which were circulated post April, 2012 which cannot be made applicable for the period right from June, 2009 onwards. (c) The appellants had requested the Adjudicating Authority for allowing the cross-objection of various C F agents and dealers whose statements have been relied upon in the show cause notices and also several co-noticees. The same has not been permitted by the Adjudicating Authority. This amounts to violation of the principles of natural justice. (d) The detailed reply submitted by the appellants in reply to the show cause notice has not been considered and discussed by the Adjudicating Authority. (e) The Adjudicating Authority has clubbed the clearances of both TAPL as well as 3D and confirmed the demand jointly and severally against both. He argued that demand cannot be made jointly and severally f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of investigation that the price list circulated by TAPL have also been adopted for selling of goods imported in the name of 3D. The modus-operandi adopted is not challenged by the appellants. It stands admitted that such activity amounts to manufacture in terms of Section 2(f)(iii). The demand raised is w.e.f. June 2012. 11. The impugned order stands seriously challenged with reference to its finding that clearances of both TAPL as well as 3D are liable for clubbing, for purposes of allowing the benefit of small scale exemption. From the appeal record, we find that both TAPL as well as 3D have separate existence in the eyes of law. The former is a Private Limited company whereas the latter is a Partnership firm. The goods were imported under both names and have also been sold under both names, inspite of the fact that the goods were mixed up at the godown and have been sold on the basis of price list circulated by TAPL. It is settled position of law that in the absence of mutuality of interest and financial flow back from one firm to another, clubbing of clearances is not permissible merely on the ground that both firms are in the common premises and affairs of all firm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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