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TMI Blog2025 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 came to be issued on the appellant. Central Excise duty along with interest was demanded and penalty was proposed to be imposed. It was alleged that Central Excise duty in regard to whatever clearances made by another firm viz. M/s Macons Engineers situated at plot no. 37/C/A, Phase-I, GIDC, Vatva, Ahmedabad was required to be demanded from the appellant ie. M/s Maxocrete Equipments. Plot no. 37/C was registered factory premise of M/s Maxocrete Equipments. Sub-plot No. 37/C/A was given on rent to another firm viz. M/s Macons Engineers. As per the appellants said another firm used to manufacture different goods viz. Stationery Concrete Batching Mixing Plant (TI 8474.10). Mobile Concrete Batching Mixing Plant (TI 8474.10), Spares of Stationery Concrete Batching Mixing Plant (T1 8474.90) and Spares of Mobile Concrete Batching Mixing Plant (11 8474.90). Demand was made with regard to the goods cleared by M/s Macons Engineers under their Central Excise Invoices from the appellant i.e. M/s Maxocrete Equipments. M/s Macons Engineers was not issued any Show-cause Notice nor it was even made a party to the Show-cause Notice issued to M/s Maxocrete Equipments. Appellants further state t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acons Engineers is a dummy unit and therefore, the duty with regard to the clearances made by M/s Macons Engineers is required to be made from M/s Maxocrete Equipments, even in that case, it is a settled law that unless Show-cause Notice is issued to the alleged dummy unit, all proceedings initiated against the principal unit would be vitiated. Said submission finds support from following judgements: Pap Flon Engineering Co. Pvt. Ltd. versus Commr. of C.Ex., Ahmedabad-1 reported at 2022 (381) E.L.T. 500 (Tri. Ahmd.) Poly Resins versus Commissioner of Central Excise, Chennai-1 reported at 2003 (161) E.L.T. 1136 (Tri. Chennai) Commissioner versus Sapna Engineering reported at 2018 (360) ELT A303(Bom.) Sapna Engineering versus Commissioner of Central Excise, Mumbai reported at 2018 (360) ELT 1019 (Tri. - Mumbai) KR Balchandran versus Commissioner of Central Excise. Coimbatore reported at 2003 (151) ELT 68 (Tri. - Chennai) 3.2 From the aforesaid judgements, it would be found that whether it is a case of clubbing of clearances of alleged dummy unit with the clearances of principal unit or demanding duty in regard to the clearances of alleged dummy unit from the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Industrial Development Authority under statutory rules could not have been let out to M/S. Macons Equipments and that the registration of premises was shown to be that of M/S. Macons Equipments was part and partial of premises of the appellant as per the flow chart submitted by the appellant while taking Central Excise registration. Further, he relies upon the various admissions as contained in the finding of Commissioner (Appeals) in the impugned order, which are as follows:- "3.1 The only defence M/s. Maxocrete Equipments has put forth is a ples of giving them cum-duty benefit on the sales effected on the invoices issued in the name and style of M/s. Macons Engineers which is not physically existing. Since the sale invoices have been issued in the name of an admitted non-existent firm which is fictitious the clearances have to be considered as clandestine clearances and the entire effort is to be considered as an effort to deliberately remain within the SSI exemption limit by suppressing the value of clearances. Benefit of the decisions of Maruti Udyog Ltd. [2002(141) ELT 3 (S.C.)] will not assist the notices to get the benefit of cum-duty price and/or penalty. The apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant only and therefore were required to suffer duty as has been upheld along with interest and penalty by the Commissioner (Appeals). Findings : - 6. This Court finds that the appellants unit was granted Central Excise Registration on 31.02.2001 for Plot No. 37/C, Phase-I DIDC Estate Vatva. It also finds that on 21st June, 2003, the appellant through a documented rent agreement let out a portion of the Plot No. 37/C/A for factory to M/s Macons Engineers under which agreement, apart from shed, certain part of machineries as has been mentioned in Clause 1 were also let out to the lessee unit, under rent and both the shed as well as plant and machineries were separately charged to rent. It was also mentioned that the electricity expenditure will be shared in proportion to their annual turnover. The agreement also indicated how the telephone expenditure shall be shared. Agreement also indicated how various common facilities and services shall be shared between the parties. On the basis of such agreement as an annexure de-marketed areas were also indicated. M/s Macons Engineers started commencement of production on 02.08.2003 and were granted licence registration and licence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its own DIC certificate, CST registration, separate electricity connection, issued separate invoices; that the investigation with the buyers revealed that they purchased the goods from M/s. Macons; that there were independent bills of purchase of machinery by M/s. Macons; that the Chartered Accountant had certified purchase of raw materials and sale by M/s. Macons. All these arguments fail while examining only one basic fact ie. of registration. The premises shown as M/s. Macons, was part and parcel of the premises of the appellant [M/s. Maxocrete Equipment) as per the floor plan submitted by the appellant while taking Central Excise registration. This was never changed by the appellant while renting out part of the premises to M/s. Macons Engineer. Even otherwise, legally the appellant could not have sub let the premises in terms of GIDA rules. Further, the appellant has further harped that M/s. Macon had its own DIC certificate, CST registration, IEC certificate, separate electricity connection. I am afraid this argument would not help the appellant's case since none of agencies/department giving the aforementioned certificate, conduct verification of the premise, before is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned the clubbing of the clearances of M/s Macons with his own clearances, this plea raised upon before Commissioner (Appeals) assumes the colour of an the additional evidence and therefore in terms of Rule 5, I cannot permit raising of additional grounds before the first appellate authority, more so since, the conditions stipulated under Rule 5 (supra) does not stands fulfilled". 7. Thus it is clear that what the department had made out was nothing but a case of clubbing only and same position is admitted by the Commissioner (Appeals) though considering which was an additional ground apart from cum-duty-tax proposition, he did not allow the same. It is also clear from para 7 of the show cause notice reproduced below : " 7. From the facts narrated and depositions made above it appears that M/s Maxocrete Equipments, Plot No 37/C, Phase-1, GIDC, Vatva, Ahmedabad have deliberately and knowingly floated another firm in the name and style of M/s Macons Engineers in order to claim SSI exemption and evaded payment of central excise duty. Ground plan submitted during the course of panchnama and physical verification made thereof clearly shows that the entire factory was the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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