2007 (4) TMI 114 - AT - Central Excise

Appeal successful in separate operations case, emphasizing lack of commonality for tax exemption

BRIGHT PAINTS AND CHEMICALS Versus COMMISSIONER OF C. EX., KOLKATA-V

BRIGHT PAINTS AND CHEMICALS Versus COMMISSIONER OF C. EX., KOLKATA-V - 2007 (216) E.L.T. 36 (Tri. - Kolkata) Issues:1. Clubbing of clearance of two firms for SSI exemption.2. Justification of penalty imposed.Issue 1: Clubbing of clearance for SSI exemptionThe Appellate Tribunal, Kolkata dealt with an appeal against an Appellate Order upholding the clubbing of clearances of two firms, M/s. Bright Paints & Chemicals and M/s. Swan Paint & Varnish Works. The Commissioner (Appeals) found the clubbing proper as both firms were run by family members, engaged in similar activities, and operated under different names. The Tribunal relied on previous judgments to support the clubbing decision based on the activities and relationships between the firms.Analysis:The appellant argued that both firms were independent entities, with one partner forming M/s. Swan Paint & Varnish Works after retiring from the appellant firm. They highlighted commercial expediency in their agreement and the separate manufacturing and selling activities of M/s. SPVW. The appellant emphasized the lack of financial control or flow back of money between the firms. The Tribunal noted the rise in sales of M/s. SPVW's own products and found no evidence of prejudicial interconnection or financial assistance from the appellant.Issue 2: Justification of penaltyThe Appellate Authority upheld the imposition of a penalty of Rs. 50,000, considering the clubbing of clearances justified. The Revenue argued that the arrangement between the firms was to exploit SSI exemption limits at the cost of revenue, justifying the denial of exemption and the clubbing of clearances. The Revenue contended that the order was sustainable based on these grounds.Analysis:The Tribunal, after hearing both sides and examining the records, found no evidence of financial control or assistance from the appellant to M/s. SPVW. They emphasized the lack of interconnected relations found by statutory authorities and the separate locations of both units. Referring to relevant case law, the Tribunal concluded that without evidence of commonality in management, control, or trade transactions, the clubbing of clearances for SSI exemption was unwarranted. Consequently, the appeal was allowed, overturning the decision to club the clearances.In conclusion, the Appellate Tribunal, Kolkata, in this judgment, analyzed the issues of clubbing clearances for SSI exemption and the justification of the penalty imposed. The Tribunal found that the lack of evidence supporting commonality between the firms led to the decision to allow the appeal and reject the clubbing of clearances. The judgment emphasized the importance of credible evidence in determining the relationship between entities for tax purposes.