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TMI Blog2023 (10) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods cleared between 1st April 2011 and 16th October 2011 under section 11A of Central Excise Act, 1944, along with interest as applicable under section 11AA of Central Excise Act, 1944, besides imposing penalty of like amount under section 11AC of Central Excise Act, 1944. 2. It was alleged that the appellant, a manufacturer of 'electrical accessories' and 'lighting accessories', and availing the benefit of notification no 8/2003-CE dated 1st March 2003 intended for 'small scale industry', was found to be ineligible thereto as '(b) clearances of the specified goods which are used as inputs for further manufacture of any specified goods within the factory of production of the specified goods.' among the conditions enumerated in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 3. Indeed, it is astonishing that the lower authorities have taken it for granted that a judicial decision can be the ground for issuing notice for recovery against another assessee. Notices should be all about breach of law, as legislated and notified, set forth in a notice for it is far-fetched to consider any decision to be precedent for anything other than itself. 4. We have heard Learned Counsel for appellant and Learned Authorized Representative at length. Interestingly, as pointed out by Learned Counsel, the order [order-in-original no. 187/19/V/2012/Commr/KS dated 21st March 2012] referred to in the adjudication proceedings as sufficient to hold against the appellant in the matter now before us had disposed off by order [final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n certificate in the name of the appellant which is reproduced below:- xxxxxx From the perusal of the above certificate of registration it is clear that the brand name KALKI was registered in the name of the appellant from 01.07.2009. 4.7 Commissioner has given no plausible reason for denying SSI exemption. 4.8 Appellant has relied upon the following decisions in his support: A. Arco Whitney Ltd. [2006 (193) ELT 217 (Tri-Mum)] "4. We do not find much force in the above reasoning. Scrutiny of the purchase deed show that the unit 'ARCO WHITNEY' was sold along with all its assets and properties which included trademarks, designs etc. The words A/W was not being used by M/s. American Refrigerators Co. Ltd. which was using the brand n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d business in the manner as may be decided by the purchaser. As such, it is clear that entire assets of the running units along with trademark were purchased by the appellant. In such case it cannot be said that the same belongs to the seller. Use of the same will not disentitle the appellant from the benefit of small scale exemption of the notification." B. Vankatesh Yedidha [2016 (332) ELT 860 (Tri-Mum)] "7.1 After considering the submissions made by both sides and on perusal of the records, we find that as regards the issue No. 1 the entire arguments of the learned Consultant is Venky & Co. is sole proprietorship firm while ICPL is a Private Limited Company hence, clearances cannot be clubbed as also for the reason that both the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has ordered that the following general principles will be applicable to Notification No. 175/86-C.E. :- (i) The question whether different partnerships having common partners are treatable as separate manufacturers or the same manufacturer, would be a question of fact in each case to be determined on the basis of such factors among other, like composition of the partnership, existence of the factory, licence, nature of goods manufactured, etc. (ii) Different firms will be treated as different manufacturers for the purpose of exemption limit. But if a firm consisting of certain partners say A, B & C has got more than one factory, all these factories should of course be combined. Limited Companies whether public or private are separate en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving 90% of shares in ICPL by virtue of being proprietor of Venky & Co., the clearances could be clubbed. In our view Revenue is arguing against their own circular which is incorrect. This view was taken by the Hon'ble High Court of Madras in the case of Campion Plastic Industries Ltd. - 1996 (84) E.L.T. 189. Accordingly, we hold that the clearances effected by the sole proprietorship firm Vinky & Co. and ICPL cannot be clubbed for arriving at the total clearances of ICPL. This view of ours is also from the fact that both the entities are located at different places and registered with authorities under whose jurisdiction they fall. 7.3 As regards the using of Brand name "Irony" and "Terminator", we hold that the Brand name "Irony" was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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