TMI Blog2019 (11) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ch itself shows that the firms were already closed by their respective proprietors/owners. Moreover, the documents placed before us show that these units having their independent existence and registered with various government departments that these units were separate units. There is no denial by the revenue in respect of the documentary evidences found during the course of investigation and placed on record - the documentary evidence will prevail over the oral statements recorded during the course of investigation. The clearances of the firms, namely, M/s. Premier Castings (M/s.PC), M/s. Castech Industries (M/s.CTI) and M/s.Dynocast Industries (M/s.DCI) cannot be clubbed with clearances of M/s. MWF - Consequently, no penalty can be imposed on the said allegation Whether M/s. Industrial Casting (M/s. IC), M/s. Gautam Industries (M/s. GI) and M/s. S.G. Ferro Engineering Pvt. Ltd. (M/s. SGFEPL) can be held dummy unit of M/s. MWF and consequently the benefit of exemption N/N. 08/03-CE dt.1.3.2003 can be denied and duty be demanded from them? - HELD THAT:- All these units were found working during the course of investigation itself and machinery were installed. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AL) Shri K. K. Anand, Shri N. K. Sharma, Advocates for the Appellant Shri Basha Ram, Authorised Representative for the Respondent ORDER Per: Mr. Ashok Jindal The appellants are in appeal against the impugned order wherein the duty has been demanded from them to deny the benefit of exemption Notification No.08/03-CE dt.1.3.2003 by clubbing clearances made by co-noticees. 2. The facts of the case are that the appellant, namely, M/s. Mechwell Foundry (M/s.MWF) and is registered with Central Excise Department to manufacture of C.I. Castings and Machine parts. An intelligence was gathered that M/s. MWF by were engaged in evasion of duty by floating various dummy units, so as to avail the benefit of duty free clearances under SSI exemption Notification No.08/03-CE dt.1.3.2003 as amended. On the basis of that intelligence, the search operations were conducted by the officers of Anti-Evasion branch of Delhi-IV Central Excise Commissionerate, Faridabad on 03.08.2010 at various business/residential premises belonging to M/s.Mech-Well Group. Shri Gaurav Gupta, who was qualified engineer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her Shri Vijay Gupta and his brother Shri Saurabh Gupta floated one more non Central Excise registered unit namely,M/s. S.G.Ferro Engineering Pvt.Ltd. (M/s. SGFEPL) to manufacture of C.I.Casting as a private limited company with his father and one more person namely, Shri Nirmal Kumar Gupta as the directors. There are total eight number of business entities, (six shown as manufacturing CI Castings, one for machines and one for manufacturing thermocole packing materials) under Mech-well Group, which was controlled and managed primarily by Shri Gaurav Gupta. Six of the said concerns were found to be unregistered and were showing their annual sales below the exemption limit of ₹ 1.50 crore as prescribed under Notification No.08/03-CE dt.1.3.2003 for taking benefit of duty free clearances. 6. It is alleged that this showed the deliberate intention of Shri Gaurav Gupta to evade payment of duty since he was well versed with the Central Excise provisions, being Central Excise registrant for long time. It was also found that free flow funds among all the said eight entities and there was heavy cash withdrawals in the bank accounts of the respective firms, which were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same since all the said units were family owned concerns and further their finances were also being managed jointly. Therefore, it was alleged that MWF have indulged in blatant contravention of Central Excise Act/Rules in as much has that they wilfully floated the said three dummy units through their proprietor Shri Gaurav Gupta and later used the said three units as a cover for clandestine removal of excisable goods from their factories. Therefore, they evaded the duty during the period 1.4.2006 to 3.8.2010. Further, the units, namely, IC, GI and SGFEPL were not eligible for the benefit of duty free clearances under Notification No.08/03-CE dt.1.3.2003, due to the reasons mentioned in the notice, that these dummy units floated by Shri Gaurav Gupta, therefore, they are liable to pay duty on their clearances and the duty was demanded from them. In these set of facts, a show cause notice dt. 6.5.2011 was issued for demand of duty for the period 12.4.2006 to 30.07.2010. The matter was adjudicated and following order has been passed:- Against the said order, the appellants are in appeal before us. 8. Ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etracted the same cannot be relied upon unless it is proved that these statements were recorded without threat or inducement. It is also a well settled law that when a witnesses resiles during the crossexamination from his original statement, the said original statement loses its evidentiary value. Further it is also well settled law that when a witness is called for cross-examination but does not appear for such cross-examination, his statement has to be eschewed from the evidence. 12. That apart from the above position on the issue of statements the Commissioner has relied upon the original statements without following the procedure as envisaged under Section 9D of the CEA which is of a mandatory nature. Section 9D (1) of the CEA,1944 clearly mandates that before admitting a statement in evidence the evidence of a witness must be recorded before the Adjudicating Authority. Only after recording of such statement before the Adjudicating Authority the said evidence can be admitted in evidence. However, in the present case the Adjudicating Authority has straightway relied upon the statements recorded during investigation of enquiry without following the procedure laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a sale invoice which contains vehicle number under which CI Casting sold the goods. Similar is the position with invoice dated 20-03-2008 and so on. The purchase register of CI reveals the details of the purchases made by CI during the financial year 2008-09. Copies of the purchase invoices reveal that CI purchased various raw materials from different manufacturers/traders. These invoices contain the vehicle number and other details of the raw material purchased by them. The raw material was purchased against form D-1, in respect of the sales effected by CI during the financial year 2008-09, a perusal of various invoices would reveal that the sales were effected by CI on the strength of invoices. The names of the buyers are duly mentioned in the invoices with vehicle details. Some of the sales were effected outside the State of Haryana. As is evident from the invoice dated 15- 12-2008 wherein the sales were made to NOIDA, UP vide VAT D-3 form number 9810694. Similar is the case in respect of invoice dated 5-12-2008, wherein reference to form UP 38 and form D-3 are given. Similar is the case in respect of invoice dated 4-12-2008 . There is no evidence at all to prove that the raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly reflected in his Income Tax return. 17. That all the three units whose clearances were clubbed with M/s. MWF and M/s. IT were granted separate TIN number. The details of these TIN numbers are contained in the Show Cause Notice. TIN number stands for Tax identification number which is a eleven digit number assigned to dealers in India who were involved in manufacturing and trading of goods. In order to obtain the TIN number, the dealer has to furnish the documents such as proof of possession of premises such as electricity bills, property tax receipt, rent agreement etc. The dealer has also to submit PAN Card for the entry of bank statement, photograph of the promoter, address proof of the promoter, nature of the business and other information. Therefore, the allegations/findings that the three units were dummy units cannot be sustained as all the three units had their respective TIN numbers which could not be granted to them without providing the above information to the VAT authority. 18. That there were allegations in the Show Cause Notice that it was M/s. MWF which had cleared the finished goods under the invoices of these three dummy firms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Assessment Orders, Income Tax returns including the Balance Sheets. 23. That all the three units namely M/s. IC, M/s. GI and M/s. SGFEPL were visited by the Central Excise officers on 3-8-2010. All the three units were found working and it is clear from the panchnamas drawn at the respective premises. The details of the three panchnamas are as under:-- (i) Panchnama dated 3-08-2010 drawn at the premises of IC. (ii) Panchnama dated 3-8-2010 drawn at the premises of M/s. GI. (iii) Panchnama dated 3-08-2010 drawn in the premises of M/s. SGFEPL. 24. It is pertinent to state that M/s. IC and M/s. GI were registered by the department itself on 9-8-2010 when they were given Central Excise certificate. The registration certificates of M/s. GI and M/s. IC are placed on record. This would clearly mean that the department treated both the units as separate and independent. Further both the units were made to deposit ₹ 15 lakhs each at the time of search. Further the duty has also been confirmed against these two units which would mean that these are separate and independent units and had no relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , W-3, SarurpurIndl.Area has been floated in the name of Sh. Sunil Kumar Goel, Accountant of Mech- Well Foundry, Dynocast Industries, W-3, Sarurpur Indl.Area, in the name of Sh. Pritimesh K. Sharma of Mech-Well Foundry and Premier Castings, Plot No.12, Gali No.6, Sarurpur Indl.Area in the name of Sh. Mool Chand, employee of Industrial Thermopac. 5. During investigation Proprietors of these dummy firms as well as Sh. Gaurav Gupta and Sh. Vijay Gupta have admitted floating of these three dummy firms. Thus, it is imperative to place on record some important facts of these statements, which are as under:- 1 . M/s Dynocast Industries , Prop. Sh.Pritesh Kumar in his handwritten statements 3.8.2010 and has inter alia stated that he joined Mech-Well in 2004; he drawing monthly salary of ₹ 15,000/- in cash from his employer; he has not invested in the firm; Sh. Gaurav Gupta had asked his consent for starting a new firm in his name; being an employee of Mech-Well he could not deny; he had handed over his photographs/copy of ration card/PAN card to Sh. Gaurav Gupta; as per instructions of Sh. Gaurav Gupta he went to the P.N.B., Ballabgarh Branch for openi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mech-Well in his statements 3.8.2010, 13.8.2010 and 8.4.2011 have inter alia stated that he is an accountant of Mech-Well; he is unable to state exact plot number of Premier Castings, Dynocast Industries; that he is Proprietor of Castech Industries and said firm is located at his House No.2024 Sector 3, Faridabad; he is drawing monthly salary of ₹ 15,750/- which is paid in cash by Sh. Gaurav Gupta; looking after maintenance of accounts of Mech-Well Foundry, Industrial Castings, Gautam Industries, Premier Castings, Castech Industries, Industrial Thermopac, S.G.Ferro Engineering Pvt. Ltd. and Dynocast Industries; not getting any consideration in cash or kind from any of above stated units other than salary drawn from Mech-Well; he is looking after their work as per the directions of Sh. Gaurav Gupta; as per record Prop. of Premier Castings was Sh. Mool Chand, employee of Industrial Thermopac; C.I.Castings have been sold on the bills of Premier Castings and buyers are almost common with those of Mech-Well; premises of W-2, Sarurpur Indl.Area was adjoining the premises of Mech-Well; he has not seen any manufacturing facilities or C.I. Castings being manufactured in said premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared and signed sale invoices of Industrial Castings and Gautam Industries on the directions of Sh. Gaurav Gupta. 4. Important facts of statements of S/Sh. Gaurav Gupta, Vijay Gupta, Saurabh Gupta and Nirmal Kumar Gupta:- Sh. Gaurav Gupta, Prop. of Mech-Well Foundry in his statements 3.8.2010, 24.8.2010, 12.1.2011 and 15.4.2011 have inter alia stated that he had started a firm Mech-Well in 1996; plot No.15 has been rented out by him to Gautam Industry owned by his brother; Plot No.13 14 were owned by him and earlier Mech-Well Unit-I was functioning from this premises but w.e.f. 1.4.2009 these premises are being used by Industrial Casting for manufacture of same items as was earlier being manufactured by Mech-Well; that over-head crane which were installed at Plot No.13,14 at the time of Mech-Well are being used by Industrial Casting along with some old machines of Mech-Well; Mech-Well are not charging anything from Industrial Castings for use of premises and over head cranes of machines; his brother Sh. Saurabh Gupta and father Sh. Vijay Gupta are living in a joint family in H.No.2028/9, Faridabad; he is voluntarily tendering two post-da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed conformity with the facts stated in these statements. They started one unit for manufacture of C.I. Castings with Sh. Sunil Goel, Accountant of Mech-Well by name of Castech Industries; all formalities for opening this unit were completed by him and bank account opening forms and other relevant documents were signed by Sh. Sunil Goel; declared premises of Castech Industries is same as that of Premier Castings and as per records the said premises was rented out by his father to Castech Industries for manufacture of C.I. Castings on a monthly rent of ₹ 3500/-; the said premises being utilized by Premier Castings; Castech Industries could not found enough place in the same premises for installation of plant machinery; manufacturing facilities of Mech-Well were utilized for manufacture of C.I. Castings sold against invoices of Castech Industries; he was procuring purchase orders for this firm and was responsible for all business affairs of the same. They started Dynocast Industries in December, 2008 in name of Sh. Pratimesh K. Sharma of Mech-Well; said unit was started for manufacture of C.I. Castings; C.I. Castings sold against bills of Dynocast Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit to account of another; about funds transfer to from three dummy concerns he stated that since they were showing sale of goods against bills of such firms as per accounting requirement funds were transferred to and from their other units to accounts of such dummy concern. Sh. Vijay Gupta, Prop. of Industrial Thermopac in his statements 3.8.2010, 12.1.2011 and 15.4.2011 have inter alia stated that his two sons Sh. Gaurav Gupta and Sh. Saurabh Gupta resides in House No.2028 Sector 9, Faridabad; premises W-3 and Gali No.4, Sarurpur for the purpose of rent deed in respect of Castech Industries and Premier Castings was same and different address was marked to give impression that said premises was different; no machinery/fixture as mentioned in agreement between himself and Mr.Mool Chand were installed in said premises rented out by him; Sh. Mool Chand is employee of Industrial Thermopac; his monthly salary is ₹ 5300/-; in 2009 his son Gaurav Gupta started a firm by name of Premier Castings mentioning address as W-2, Sarurpur Indl.Area with Sh.Mool Chand as Prop. for manufacture of C.I. Castings; they could not commence any production whatsoever in Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akash; neither generator nor crane was there; they were not getting any job work done from outside; bills of capital goods of Gautam Industry Industrial Castings are not traceable; sale bill of Gautam Industries for 1.4.06 to 23.4.10 appears to have been misplaced. Sh. Nirmal Kumar Gupta , Director of S.G.Ferro Engg. Pvt. Ltd. in his hand written statement 14.3.2011 has inter alia stated that plot Gali No.8, Sarurpur Indl. Area was purchased by him on the advice of Sh. Gaurav Gupta to start a C.I. Casting manufacturing unit; he become one of the Director; setting of plant machinery was organised by Sh. Gaurav Gupta; he has no idea from where they have purchased plant machinery; he has no idea about production and manufacturing process of C.I. Castings manufactured by S.G.Ferro; he is only passive Director and other Director Sh. Vijay Kumar Gupta is also not actively involved in business affairs; business of company is run and managed by Sh. Gaurav Gupta, who is having a manufacturing unit of C.I. Casting in the same area by name of Mech-Well Foundry; all details of purchase, production and sale extra can be given by Sh. Gaurav Gupta. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of manufacturer at Plot No.15, Sarurpur More; factory reflected with signboard as Gautam Industry; that invoices issued for these dispatches are the invoices of M/s Mech-Well Foundry; v) Sh. R.C. Grover of Pressline India Pvt. Ltd. in his statement 6.10.2010 has inter alia stated that before taking delivery Sh. S.S.Sharma goes to factory of Mech-Well to check C.I. Castings and he is in full conformity with facts stated by Sh. Sharma in his statement 3.8.2010. vi) Further as per statements of suppliers of goods have by and large stated that they supplied goods on the directions of Sh. Gaurav Gupta; they have seen only Mech-Well; payments were made by Sh. Gaurav Gupta by cash and cheques; as per knowledge Sh. Gaurav Gupta is owner of all these firms. vii) Further statements 22.3.2011, 23.3.2011, 24.3.2011, 25.3.2011, 28.3.2011 and 11.4.2011 of buyers of goods from the firms of Mech-Well Group by and large stated that Sh. Gaurav Gupta their family members are owners of these firms; Sh. Gaurav Gupta supplied them C.I. Castings on invoices of any of these firms; they used to make payments as per name of units mentioned in invoices; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement: Table at Page 66 showing ownership of premises and no rent was paid to owners of properties being units of a family members. For common Employees, electricity meter promissory seed money: All affairs were done under common management of Sh. Gaurav Gupta, his father Sh. Vijay Gupta and his younger son Sh. Saurabh Gupta. Thereafter it is concluded that Gautam Industry, Industrial Castings and S.G.Ferro Alloys are dummy units of Mech-Well Foundry and Industrial Thermopac owned by Sh. Gaurav Gupta and Sh. Vijay Gupta respectively and created to avail inadmissible SSI exemption. Dummy firms were created by Sh. Gaurav Gupta on papers and all units were controlled by one person Sh. Gaurav Gupta as noticees failed to discharge the onus of proof of fulfilment of conditions of Notification No.8/2003 and thus raising demand beyond normal period of limitation was correct. 7. Documentary evidence establishing mutual interest as well as free flow of financial transactions between these firms and cash withdrawals of ₹ 6.86 Crores. (A) i) The sale invoices have been issued among all these units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urav Gupta was handling affairs of all firms and invoices of other units were issued when C.I. Castings was transported from Mech-Well. (B) Annexure marked ‟A‟ to H‟ prepared from bank statements and reflected year-wise details of financial transactions by way of cash/cheque receipts payments between all units of joint family members of Mech-Well Group including dummy firms reflected cash withdrawals of ₹ 6,85,94,251/- by Mech-Well Group including dummy firms. Under statement 15.4.2011 Sh. Gaurav Gupta gone through these Annexure and appended his dated signatures and stated that these units were their family owned concerns and as per the requirements of funds the same were transferred from the account of one unit to the account of another. As regards dummy firms, he stated that since they were showing sale of goods against bills of such firms as per accounting requirement funds were transferred to and from their other units to the accounts of such dummy concern. Further Proprietors of dummy firms have admitted that they were paid salary in cash and used to sign blank cheque books in advance on the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements. Thus it can be safely concluded that such statements could be made only with their personal knowledge and could not have been obtained through coercion or duress or through dictation. The learned Adjudicating Authority in his findings has concluded that most of the persons have not retracted their statements and some failed to produce any documentary evidence towards receipt of retraction in his office. Importantly such retractions are only afterthought when no evidence or even allegation of mala fide or demand of any undue favour or illegal gratification has been brought on record against any of the officer. When no mala fide intent or explanation has been placed on record to prove recording of statements under threat, duress and coercion then it can be concluded that an attempt has been made to malign the officers, who are performing their statutory duties to save the valuable economy of the country. Most relevant question is that mostly statements are hand-written with smooth accuracy and writing flow and how statements of these persons can be under threat or duress when recorded after a considerable and long gap of time period i.e. Sh. Gaurav Gupta t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further during investigations and tendering statements Proprietors of these dummy firms as well as Sh. Gaurav Gupta and Sh. Vijay Gupta confessed that these firms were floated on papers and there was no plant, machinery, electricity connection and premises and they were showing sale of goods against the bills of dummy firms for the purpose of accounting requirement and in-fact goods were manufactured and cleared from Mech-Well. At the time of investigation Appellants neither produced invoices evidencing purchase of plant machinery for these dummy units nor sale invoices showing disposal on closure of dummy firms. All documents including fake rent agreements have been prepared only to show existence of dummy firms in papers. Thus, in view of facts, documentary evidence and admission the record produced to support existence of dummy units should not be taken into consideration being fabricated, manipulated and certain clearances got from the concerned authorities by filing false declaration/information. These facts have duly been admitted during investigation. 11.It has been pointed out during argument by the learned Counsel that dummy firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi) ₹ 1 lakh against Sh. Pritimesh Kumar Sharma, Factory In-charge of Mech-Well Foundry and Prop. of Dynocast Industries; vii) ₹ 50,000/- against Sh. Vidya Sagar Hans of Hans Industry; viii) ₹ 10,000/- against Sh. Dharmender, Driver of Hans Industry; ix) ₹ 50,000/- against Sh. Anil Hans of Hans Udyog. 27. Heard the parties in details and examined the records placed before us and directed both sides to file written submissions which have been filed by both sides and taken on record. 28. The issues arising from the facts of the case, is to be decided by us:- (1) whether M/s. Premier Castings (M/s.PC), M/s. Castech Industries (M/s.CTI) and M/s.Dynocast Industries (M/s.DCI) are non existing and are dummy units of M/s. MWF and (2) Whether M/s. Industrial Casting (M/s. IC), M/s. Gautam Industries (M/s. GI) and M/s. S.G. Ferro Engineering Pvt. Ltd. (M/s. SGFEPL) can be held dummy unit of M/s. MWF and consequently the benefit of exemption Notification No.08/03-CE dt.1.3.2003 can be denied and duty be demanded from them. Issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason to club the clearances of these firms and cannot be alleged that these were dummy units as the issue has been examined by this Tribunal in the case of Nova Industries Pvt.Ltd.-2015 (327) ELT 103 (Tri.- (supra) wherein this Tribunal observed as under:- 15. First, we will deal with the issue whether the clearance of M/s. DSA can be clubbed with the clearance of M/s. NOVA. In the impugned order, the allegation against the appellant is that both the companies were promoted by Shri D.V. Khanna himself as Managing Director of both the companies and Director in both the companies are same. It is also found that by the Adjudicating Authority, the salesman/dealers to be decided mutually and marketing of both the companies were commonly and salary of employee of M/s. Nova was paid from M/s. DSA and commission of employees of M/s. NOVA was paid from M/s. DSA‟s account. The annual incentives were given to the dealers on the basis of combined sales of both the units. Moreover, the shareholding in both the units by the Directors is almost common. Sometimes, money was given to each other but nothing was shown in the balance sheet. Therefore, clearance of both the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation is that the holding company has share capital in the subsidiary company. There is no evidence regarding financial flowback on record. In these circumstances and respectfully following the decision of the Hon‟ble Gujarat High Court, the impugned order is set aside and the appeals are allowed. The cross objections filed by the Revenue are disposed off accordingly. 18. Further, we find that, in the case of CCE v. Sharad Industries reported in 2013 (294) E.L.T. 561 (T) this Tribunal again observed as under: We, after appreciating the submissions of both the sides find that there is not much dispute on factual position. It is not the Revenue‟s case that two units owned by Smt. Kamlesh Gupta and her husband Shri Avdesh Kumar Gupta not complete units having all the necessary machines and infrastructure for manufacture of their final product. Both the units have separate Sales Tax Registration, Industries Registration, Income Tax Registration, Electricity Connection, Telephone Connection ESI Registration etc. Merely because there is a door between the two units and power of attorney stand given to her husband to look after the job of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, one unit is dummy, then the dummy unit should have been identified. In that case, the value of the clearance of dummy unit could have been clubbed with the clearance of the real unit and duty demanded. This has not been done. The learned Commissioner in the impugned order has given the following findings : - 70 (ii) Whether each unit is entitled to a separate limit (under the SSI exemption notification) as per the Board s Circular No. 6/1992, dated 29-5-1992. I have perused the Circular No. 6/1992, dated 29-5-1992 [issued from F. No. 213/15/92-CX-6] issued by the Central Board of Excise and Customs, New Delhi in the context of SSI exemption Notification No. 175/86-C.E., dated 1-3-1986. In the said Circular, the board had, inter alia, clarified that the limited companies, whether public or private, are separate entities distinct from the shareholders composing it and hence, each limited company is a manufacturer by itself and would be entitled to a separate exemption limit. It is not in dispute that M/s. Ennar Cements and M/s. Seshashaila Cements are private limited companies registered separately under the Companies Act and each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax having separate Central Excise Licenses and also financed through separate application for loan from financial institutions - Shareholders in all the firms not the same group of persons - Tie up with Medly Pharmaceuticals for marketing purposes explained inasmuch as the services rendered being paid for in terms of agreement between them - Clubbing of clearances of units not justified in absence of conclusive evidence of financial flow back among them - Notification No. 83/83, dated 1-3- 1983, No. 85/85, dated 17-3-1985 and No. 175/86, dated 1-3-1986. 23. We also find that the activity of the appellants were in the knowledge of the department as they were registered with the Central Excise Department and units are located in the same range, therefore, extended period of limitation is also not invokable for clubbing the clearance of DSA with NOVA. 24. From the analysis of the above decisions and the facts of the case before us, we find that both the units are separately located having separate registrations and dealing separately. We also find that there is no financial flow back, therefore, there is no mutuality of interest between the units. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises; that the builder subsequently cancelled the agreement and therefore he was to take the money back to Dubai and he was in fact taking it back on 15-3-1998 when it was seized. Shri Philip Fernandes has produced before the Commissioner a certificate dated 30-6-1995 from National Drilling Company, Abu Dhabi showing his employment with the Company for over 15 years, copies of bank‟s statements showing substantial withdrawals, the foreign exchange receipt and certificates issued by the moneychanger; copy of agreement for purchase of the commercial premises and correspondence between the builder and Mrs. Fernandes showing cancellation of the agreement as enclosures to the letter dated 29-4-1998. Although the Revenue disputes receipt of this letter on 27-4-1998 which Shri Fernandes claims was the date of its receipt we find from the original shown to us shows the date of receipt as 27-4-1998. Further copy of this letter was sent to the department again in July, 1998 and on 21-8-1998 prior to the issue of the show cause notice in September, 1998. No arguments are put forth by the learned DR to dislodge the findings of the Commissioner on the basis of the above documentary eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed away, therefore, no proceedings survive against M/s. Castech Industries. Issue No.2 Whether M/s. Industrial Casting (M/s. IC), M/s. Gautam Industries (M/s. GI) and M/s. S.G. Ferro Engineering Pvt. Ltd. (M/s. SGFEPL) can be held dummy unit of M/s. MWF and consequently the benefit of exemption Notification No.08/03-CE dt.1.3.2003 can be denied and duty be demanded from them. 38. We take note of the fact that during the course of investigation itself following documents as well as machinery were found from the premises which are as under:- Industrial Casting:- Gautam Industries:- M/s S. G. Ferro Engineering Pvt. Limited:- 39. We have gone through the panchnama also. As per panchnama, all these units were found working during the course of investigation itself and machinery were installed. Moreover, the documents which have been found during the course of investigation, show that these units were separate manufacturing units and their clearance were the below the threshold limit in terms of Notification No.08/03-CE dt.1.3.2003 as amended. Moreover, the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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