TMI Blog2018 (10) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... the department does not dispute the independent existence of both the appellant companies. It was submitted by Ld. AR that most of the finished goods came into existence at the premises of M/s. TTRPL but majority of the clandestine clearances were effected using the invoices of M/s. TRPL. However, demand has not been confirmed against any particular company, though the clearances were sought to be clubbed - also, Department does not dispute the distinct identity of both M/s TRPL & M/s TTRPL. In this case it is a recognized fact that both units are existing and paying duty separately. In such a situation, the legality of demand of duty from both units, becomes questionable. The confirmation of duty on both the units not only leads to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of differential duty of ₹ 2,41,12,537 with equal penalty on the appellant while imposing penalties on other appellant s other companies and their directors. 2. It is seen that the case is built up by the Revenue on the following. (i) The appellants have procured Carbon Black and used it in an unaccounted production. It was alleged that Carbon Black consigned in the name of various purchasers was diverted to the appellant-companies as can be seen from endorsement on the reverse of the invoices/lorry receipts. (ii) Natural rubber was freely available in that area and as such it was not difficult for the appellants to procure the same from unorganized sellers and to suppress the procurement and use of the same in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her such other firms have received the Carbon Black or not. The Department has conveniently ignored the fact that such endorsement was made by certain officers of M/s. A.V Thomas to extend the benefit of free transportation to other units by using the name of the appellant. The Department has conveniently ignored the fact that all the companies listed therein are registered with Rubber Board; It has also ignored the averments of concerned persons during cross examination. (ii) The Department has relied upon the fact that a number of gunny bags of the appellants were found in the dealers premises ignoring the fact that the tread rubber manufactured by them was not only packed in the gunny bags bearing their name but also had a seal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the appellants could not have been associated with such accounts. The actual existence of the persons holding the accounts have been revealed during cross-examination. Mr. Jojo Joseph has deposed that he used to render services to P.T. Sunny and P.T. Jose got machinery for the same. Income Tax authorities who have investigated based on the same evidence have concluded that it is not possible to say that the alleged benami accounts are accounts of the appellant-companies. (vi) Clandestine removal being a serious charge, has to be evidenced by proving the use of all raw materials, consumption of electricity, transportation and receipt of sale proceeds etc. The department has relied on the alleged receipt of only one of the raw mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts) from pages 186 to 236 of 0I0 and confirmed the duty demand and imposed the penalties. The Ld. The Commissioner after following the procedures of natural justice, confirmed the duty demand and imposed penalties on M/s. TRPL, M/s. TTRPL, Shri K.P. Varkey, Shri K.V. Tolin and Shri Jojo Joseph. Adjudicating Authority summarized his findings in Paras 448 to 451 of 0I0 (pages 226 to 236). He submitted that the dept. could prove the case to maximum extent, even when the appellants resorted to destruction/manipulation of documents. The Adjudicating Authority considered all allegations raised in the SCN by the investigation and gave due weightage to the arguments and evidence/documents put forth by the noticees while deciding the case. No infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een confirmed against any particular company, though the clearances were sought to be clubbed. 5.3. We find that Ld. counsel for the appellants submitted that Hon ble Supreme Court in the case of Gajanan Fabrics Distributors Vs. CCE, Pune 1997 (92) E.L.T. 451 (SC) has held that by confirming the demand upon all the seven units the CESTAT treated them all as assessees and implicitly recognized their independent existence. The Hon ble Supreme Court has remanded the case back to the CESTAT for reconsideration. Tribunal in the case of CCE Vs. Shiva Exim Enterprises 2005 (185) E.L.T. 169 (Tri.-Del.) held that clubbing of clearances of two units can be ordered only if one unit is the principal unit while the other is a dummy one which had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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