TMI Blog2003 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out search of their factory premises as well as the factory premises of M/s. Shree Electricals, M/s. Anand Auto Electricals and M/s. Shree Stampings, Appellant Nos. 2, 3 and 4 respectively; that a show cause notice, dated 2-6-1992 was issued alleging that the clearances of the Appellant Nos. 1 to 4 for the period from April, 1987 to March, 1992 were liable to be clubbed and that upon such clubbing all the four firms were ineligible for the benefit of the SSI exemption under Notification No. 175/86-C.E., that the Notice demanded the following duty from the Appellant Nos. 1 to 4 as under: (i) Elemec Industries Rs. 22,14,597.95 (ii) Shree Electricals Rs. 31,83, 927.90 (iii) Anand Auto Electricals Rs. 19,15,438.90 (iv) Shree Stampings Rs. 18,15,173.80 2.2 The learned Advocate, mentioned that the Collector, Central Excise, under Order-in-Original No. 40/CEX/1993, dated 26-5-1993, dropped the proceedings against all the four firms and their partners holding that - (i) The allegations made by the Department that all the units of the group deliberately fragmented, managed, financed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only sought to demand Rs. 22.14 lakhs; that similarly he has confirmed the demand of duty of Rs. 1,38,48,580.44 against the appellant No. 1 though the duty sought to be demanded in 11 notices was only Rs. 44.04 lakhs and show cause notices at Serial Nos. 12 to 61 mentioned in Para 13 of the impugned Order were not issued to the Appellant No. 1. 3. The learned Counsel submitted that the Adjudicating Authority can not confirm the duty more than the duty demanded in the show cause notices; that by demanding duty in excess of amount demanded in the notices, the Commissioner has travelled beyond the notices; that Appellant No. 1 cannot be ordered to pay the duty which has been proposed to be recovered from Appellant Nos. 2 to 4; that notice dated 2-6-92 was issued invoking proviso to Section 11A of the Act alleging suppression of facts which had not been upheld by the Collector in the Adjudication Order and against which no appeal was filed on the aspect of time-limit. He contended that as no appeals were preferred against Appellant Nos. 2 and 4 against Adjudication Order, dated 26-5-1993, the finding of the Collector in favour of the said three firms to the effect that they were enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted stock which was not in contest before it as well as cash credits and bank deposits when the appeal by the Department was only in regard to additions under gross profit. The High Court has held that the powers of the Tribunal are limited to the subject-matter of the appeal and the Tribunal had no power to make an enhancement beyond the figure fixed by the officers. The learned Advocate thus contended that the Tribunal has thus not remanded the matter, in the present case for readjudication in respect of all the persons and firms against whom the show cause notice, dated 2-6-1992 was issued. He also submitted that it is settled law that the Adjudicating Authority cannot make a new case in remand proceedings; that it has been held by the Supreme Court in the case of Reckitt Coleman of India Ltd [1996 (88) E.L.T. 641 (S.C.)]. that the Appellate Tribunal is not competent to make out in favour of Revenue a case which Revenue has never canvassed and which the Appellants has never been required to met. Reliance has also been placed on the decision in the case of Warner Hindustan Ltd. v. CCE, Hyderabad, 1999 (113) E.L.T. 24 (S.C.) and Prince Khadi Woollen Handloom Prod. Coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d names being used were similar with little variation, common telephone facilities, payment in respect of one unit was being received by another, "are insufficient in the eye of law for clubbing the clearances of both the companies. The duty has been demanded in the show cause notice from both the companies and the same had been even confirmed ….. against both of them. This fact itself is enough to prove that the Department itself had accepted both the Companies as independent units otherwise the duty was to be demanded/confirmed only from one unit which was the main and not from the another which was dummy." 6. Countering the arguments, Shri Jagdish Singh, learned Departmental Representative, submitted that though the Collector in the Adjudication Order 40/93, had given his findings that there was mutuality of interest amongst the Bhatvera family, he dropped the demand of duty contrary to his findings; that on appeal preferred by the Revenue, the Department was of the view that all the firms were one firm as the entire business of the group was managed, financed and controlled by two brothers - S.T. Bhatevara and V.T. Bhatevera; that the Tribunal vide Final Order No. 873/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. Notification No. 175/86-C.E. which provides exemption from payment of duty to a small- scale unit contains a provision that notification shall not apply if the aggregate value of clearances of all excisable goods for home consumption by a manufacturer, from one or more factories had exceeded specified value in the preceding financial years. Similar condition was contained in subsequent S.S.I. exemption notifications also. A show cause notice dated 2-6-1992 was issued to 11 parties including Appellant Nos. 1 to 6 herein for clubbing clearance of all the four manufacturing units alleging that units had been fragmented only to avail the S.S.I. exemption, there were some common partners who were closely related, all the four firms were managed, financed and controlled by the same group of persons, there was free flow of raw materials and components of one unit were manufactured by another without charging and accounting for the same, etc. The Collector, however, dropped the proceedings against all the parties in Adjudication Order No. 40/C.Ex./1993, dated 26-5-1993. The findings of the Collector have been mentioned in Paragraph 2.2 earlier in the Order. The Central Board of Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11A and not to the notice in so far as it related to the period within six months from the date of the notice. This is how the judgment including its operative part has to be understood from which it is clear that there was neither any challenge to the notice in so far as it related to the period within six months of the notice nor was the notice quashed for the period within six months." 8.2 The Appellate Tribunal has also expressed the same views in Harish Textiles Engineers Pvt. Ltd., 1997 (94) E.L.T. 184 (T) wherein the Tribunal has held that the Department cannot assail the Order of the Collector (Appeals) on time-bar issue as the time-bar has been upheld against the Department by the Assistant Collector and the same had not been questioned by the Department. 9. Once the Collector's findings in Adjudication Order, dated 40/93 have become final as far as Appellant Nos. 2 to 4 are concerned, their clearances cannot be clubbed with the clearances of Appellant No. 1. As this finding has attained finality, their clearances in the subsequent periods also cannot be clubbed as the allegations are same. Once the value of clearances of the three units cannot be clubbed with the val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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