TMI Blog2019 (9) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... e clearance can be made against the appellant. Extended period of limitation - HELD THAT:- Regarding clubbing of two out of 3 units namely M/s. Bakul Chemicals Pvt. Ltd. and M/s. Pocono Chemicals was examined by Revenue in different set of proceedings and it was held that the two are distinct and different separate units - thus, it is apparent that the Revenue was fairly aware of the status of the two units and in these circumstances invocation of extended period of limitation is totally out of place and without merit. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 1347 of 2010-DB - A/11775/2019 - Dated:- 16-9-2019 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND HON'BLE MEMBER (TECHNICAL), MR. RAJU Present For the Appellant: Shri Amal Dave, Advocate Present For the Respondent: Shri T.K. Sikdar, Asst. Commr.(AR) ORDER RAJU This appeal has been filed by M/s Bakul Chemicals Pvt. Ltd. against confirmation of demand of Central Excise Duty and imposition of find and penalties. 2. Ld. Counsel for the appellant pointed out that earlier Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aalidhara Textiles Engieers Processros 2018 (360) ELT 49.3, Parimal Textiles 2018 (8) GSTL 361, Shivkripa Processors, 2018 (362) ELT 773, Adani Wilmar- SCO No. 9573/2018, M/s Apollo Tyres Ltd. SCO- 16157/2018. He pointed out that in the instant case, the facts are very similar with the facts in the case of M/s Siddhi Vinayak Syntex (supra). He pointed out that in the said case, Hon ble High Court of Gujarat, held that the cases when proceedings were kept in abeyance for a time period of a decade or more, the entire adjudication becomes vitiated, and the assessee is in no a position to defend himself, because of lapse of time, and, therefore, any order passed in adjudication is required to be quashed and set aside. Ld. Counsel argued that all the present proceedings need to be quashed in this ground itself. 2.2. Ld. Counsel further pointed out that earlier in a different proceeding involving same party, and others namely Pocono Chemicals and M/s Shonar Enterprise, the proceedings seeking to club the clearance were concluded in the appellant s favour. He pointed out that earlier vide order-in-appeal dated 12/09/1985, it was held that M/s Bakul Chemicals Pvt. Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because two units are controlled by blood relatives does not make a case of mutuality of interest and the same cannot be called related parties. 2.3 Ld. Counsel further argued that the Collector (Appeals) has erred in holding that the extended period of limitation was invocable in facts of the present case. He pointed out that for the period pertaining to 1984-85 to 1989-1990, a Show Cause Notice was issue on 20/03/1990. He pointed out that earlier vide order dated 12/09/1985, the Collector (Appeals) had examined the issue regarding commonness of M/s Bakul Chemicals, M/s Pocono Chemicals and come to a conclusion that the two are distinct and extended the benefit of exemption. Subsequently, in the order dated 22.11.1991, department also investigated the case of granting SSI exemption to M/s Shonar Enterprise vide order dated 22/11/1991, and held that they are eligible to SSI Exemption. In these circumstances, he argued that extended period could not have been invoked. He argued that Commissioner has imposed penalty of ₹ 5 lakhs each on M/s Shonar Enterprises and M/s Pocono Chemicals. He argued that since he has held these are dummy units, no penalty can be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the prayer for remanding these cases also back to the Collector for hearing them along with the main parties and thereafter pass orders in accordance with law. 2. Appeals are allowed by way of remand and hence stay application may be treated as disposed of. 4.2 Then after the Commissioner fixed hearing for the case twice. However, Shri J.P. Shah could not be produced. The Commissioner decided to keep the case pending till another case involving similar facts and circumstances is decided by Tribunal. Later on the matter of Jolly Electricals was remanded by the Tribunal in the year 2007 for fresh adjudication and, therefore, the Commissioner took up the adjudication for this case in the year 2010. The Revenue failed to bring Shri J.P. Shah for the purpose of cross examination and decided to proceed with the adjudication without cross examination. It is seen that there was a specific direction in the remand order of the Tribunal dated 12/09/1985 to bring forward Shri J.P. Shah for the purpose of cross examination. Having failed to do so, the Revenue could not rely on the statements of Shri J.P. Shah. From the annexure B to the Show Cause Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Polymers Pvt. Ltd. case (supra) it was held that demands raised solely on the basis of the statements furnished by the assessee to the banks showing inflated figures for raising higher credit limit from the bank was not sustainable. The Tribunal went on to hold that it was for the Revenue to show that the appellants had capacity to manufacture the final goods and after establishing this, the investigating authority should have brought out the manner of purchase of inputs and manufacture and clandestine removal of the goods surreptitiously without payment of duty. The link was required to be established by proper investigation and seizure of records from the appellants including the source from where the inputs could have been purchased and final goods manufactured and supplied as had been held in a number of cases. The best evidence that could be relied upon by the Revenue was the consumption of power which was required for the manufacture of goods and which exercise had not been done. We find that the impugned demand fails this test. 10. We find that the allegations raised in the show cause notice were not backed by any reliable or positive evidence. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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