TMI Blog2023 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ve four units. Further during the investigation the department also found that one room situated at shed No. 42 and 43 which is common premises where the spares of all the above four units were stored. The proprietor of the above said four units, in their respective statements have admitted that in case of necessity in business they lend money to each other without any condition as they are all members of the one family, they also agreed with the contents of the Panchnama dated 07.02.2007 as well as with the statement dated 07.02.2007 of Shri Suresh Patel. We find that the above facts are not disputed by the Appellants during the entire proceedings. The manufacture and clearances made by the said four units availing the benefit of Notification No. 8/2003-CE have to be clubbed together as we hold that these units are one and the same, when their operations are under common management/family members and financial control and have mutuality of financial interest with each other - The facts and circumstances have warranted to examine the reality of these units; and after going behind the mask of these entities, it has been revealed that activities of these units i.e. manufacture, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It therefore felt that above four units are not separately eligible for the SSI Exemption contained in the Notification No. 8/2003 CE dated 01.03.2003, the clearances shown to have been made in the name of other three units have to be clubbed with the value of clearances of the Appellant No.1 so as to determine their eligibility for exemption contained in the Notification No. 8/2003-CE dated 01.03.2003. Accordingly, on completion of the investigation, a show cause notice was issued proposing demand of central excise duty and imposing penalty on the Appellants. In adjudication, demand was confirmed vide Order In-Original dated 16.09.2010. Being aggrieved, all the appellants filed appeals before the Commissioner (Appeals), who vide impugned common Order-In-Appeals rejected the appeals and upheld the order of adjudicating authority. Aggrieved by the same, the appellants are before us. 3. Ld. Counsel Shri, Nirav Shah appearing for the appellants submits that finding in the impugned order in this case cannot be sustained. The department has failed to discharge its burden to demonstrate that there is evasion of duty. Even at the time of visit it was clarified beyond doubt that som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper divisions for availing exemption. Each of the proprietors started his business independently at different point of time. There are concrete walls between the units and Orkay Transmission of Plot No. 36 is on other side of the road. Furthermore all these units functions exactly in the same manner all the way till 2020 except for Hitesh Engineers which shifted its activity in 2008 to another premises. Despite this fact no case is made out by the department from April 2007 onwards. 3.3 He also submits that various case laws have settled the issue that commonality of administrative facilities, relation of parties, even some common use of machine, etc. cannot lead to clubbing. In the present case even electric connection are different. Most importantly there is no averment or finding on any financial flow back or managerial control as required by settled case law. Hence as per the settled legal position the units cannot be clubbed. He placed reliance on the following judgments. (i) CCE Vs. Electro Mechanical Engg. Corp. -2008 (229) ELT 321(SC) (ii) Jain Poles Ind. Vs. CCE 2018 (364) ELT 189 (Tri. Del.) (iii) Shree Nirmal Spinners Vs, CCE 2014 (300) ELT 469 (Tri. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 (Tri. Del.) S.N. Industries Vs. Union of India 2015 (324) ELT 138 (Raj.) 5. We heard the parties at length and gone through submissions, case laws cited carefully. 6. In the present matter we have gone through the records, statement recorded by the department and find that the proprietor of the above said four units are related to each by blood i.e they are blood relatives as admitted by them in their respective statements recorded by the department. Further it is also admitted facts on records that out of four units, three units did not have all the machines required to manufacture of Gears, Gear Boxes and Parts thereof. Whereas, the fourth unit i.e M/s Omkar Technolgies did not have any machinery installed in his shed. These facts have also been admitted by the proprietor of the above said four units as well as Shri Suresh J. Patel, Authorized person of M/s Orkey Gears in their statements. He also admitted the facts that seven workers on the pay roll of M/s Omkar Technolgies as Shed No. 43 were being utilized commonly by the above four units. Further during the investigation the department also found that one room situated at shed No. 42 and 43 which is common pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture and clearances made by the said four units availing the benefit of Notification No. 8/2003-CE have to be clubbed together as we hold that these units are one and the same, when their operations are under common management/family members and financial control and have mutuality of financial interest with each other. When it is so, then we agree with the findings of the impugned orders. We also find that the Hon ble Supreme Court s decision in the case of Calcutta Chromotype Ltd. v. C.C.E., Calcutta - 1998 (99) E.L.T. 202 (S.C.) had observed that depending upon the facts and circumstances of the case, veil of the company has to be lifted to find the real facts. In the present case also, all the four units, whatever is their constitution, (these are proprietary concerns), are under common management and closely controlled by relative persons. The facts and circumstances have warranted to examine the reality of these units; and after going behind the mask of these entities, it has been revealed that activities of these units i.e. manufacture, clearance, etc. has to be clubbed together. In this regard, we take support from the Hon ble Supreme Court s observations in the above ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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