TMI Blog2020 (3) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... cal verification of the machinery installed by the Chartered Engineer at unit No. II and unit No. III. As Shri N.K. Arora has given report after visiting the unit and have stated that Unit No. II and III are having manufacturing facility to manufacture the goods in question, therefore, the allegation made by the Revenue that unit Nos. II and III are not having manufacturing facility is not sustainable. Therefore, it is held that the unit Nos. II and III are having the facility to manufacture the goods in question, therefore, the allegation against unit No. I is not sustainable. The allegation is that all the units are family concern, therefore, the clearance of made by all the units are to be clubbed with the clearances of unit No. I - u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944. (3) I impose a penalty of ₹ 6,87,307/- (Rupees Six Lacs, Eighty Seven Thousand, three hundred and seven only) against M/s. Primax International, Plot No. 13, Sector 24, Faridabad under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Section 38A of the Central Excise Act, 1944. (4) I impose a penalty of ₹ 19,200/- (Rupees Nineteen thousand and two hundred only) against M/s. Hind General Industry, Plot No. 13, Sector 24, Faridabad under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Section 38A of the Central Excise Act, 1944. (5) I also [impose] a penalty of ₹ 2,00,000/- (Rupees two lacs only) against Sh. Sukhdev Singh, Partner of M/s. Primax International under Rule 209A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authority below that the machines in question were not manufactured by unit No. II and III but were manufactured by unit No. I which were cleared clandestinely by unit No. II and III to evade the payment of duty. It was also held by the authority below that there was mutuality of interest among the three units as they were owned by same family members. It was further held that the units were situated in the same plot and were inter-connected with each other. There was regular cash flow back among the units in the shape of interest free unsecured loan without having any commercial transaction. Therefore, unit No. I was liable to duty along with interest and penalty on all the appellants were imposed. Against the said order, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [notice] cannot be issued to imposed penalty under Rule 173Q as the show cause notice has not mentioned under which clause of Rule 173Q has been violated, therefore, no penalty can be imposed on the appellants as held by the Hon ble Supreme Court in the case of Amrit Foods v. CCE - 2005 (190) E.L.T. 433 (S.C.). 5. He further submits that during the course of investigation, the statement of Shri Sukhdev Singh was recorded. But mandatory procedure under Section 9D has not been followed. Therefore, the said statement cannot be relied upon. 6. He further submits that it was alleged in the show cause notice that all units are family concerns, this cannot be the ground to allege that they were involved in the evasion of duty. 7. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the case of Oudh Sugar Mills v. Union of India - 1978 (2) E.L.T. (J172) (S.C.) = 2002 TIOL-307-SC-EX and in the case of Heliwal Polypackers Pvt. Ltd. - 2016 (340) E.L.T. 204. 10. On the other hand, Ld. AR opposed the contention of the Ld. Counsel and submits that the allegations against the appellants are that unit Nos. II and III have no manufacturing facility to manufacture the goods in question, therefore, the same were cleared clandestinely by unit No. I. He relied on the chartered engineer s certificate dated 16-5-2017 submitted by Shri R.K. Aggarwal certifying that unit Nos. II and III having no manufacturing facility to manufacture the goods in question. He has relied upon the decision of Hon ble Rajasthan High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the appellants is based on physical verification of the machinery installed by the Chartered Engineer at unit No. II and unit No. III. As Shri N.K. Arora has given report after visiting the unit and have stated that Unit No. II and III are having manufacturing facility to manufacture the goods in question, therefore, the allegation made by the Revenue that unit Nos. II and III are not having manufacturing facility is not sustainable. Therefore, it is held that the unit Nos. II and III are having the facility to manufacture the goods in question, therefore, the allegation against unit No. I is not sustainable. 14. We further take note of the fact that the allegation is that all the units are family concern, therefore, the clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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