2014 (2) TMI 690 - AT - Central Excise

Court rules M/s PGO Processors independent entity for duty payment on processed fabrics

M/s SUZUKI PROCESSORS and others Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II

The court determined that M/s PGO Processors Pvt. Ltd. is an independent entity and not an extended limb of M/s Suzuki Textiles Ltd. The duty payment on ... Assessable value of goods - Duty liability on processed fabrics at the price at which M/s Suzuki Textiles sells the goods in the market - Assessee contends that M/s PGO Processors and M/s Suzuki Textiles are independent units - Demand has been confirmed by the Commissioner taking the sale price of M/s Suzuki Textiles as assessable value - whether Suzuki Processors was the real manufacturer of the output manufactured by PGO processor - Held that:- While prima facie case is one of the consideration, irreparable injury that may be caused by an interim order is a vital consideration. So also balance of convenience cannot be brushed aside to consider interim prayer. No doubt, pre-deposit is rule and waiver thereof is an exception. Interest of Revenue weighs equal importance while undue hardship is considerable - Show-cause notice does not throw light on any allegation on the proprietary interest of Suzuki Processors on PGO Processors Pvt. Ltd. and manner of control over its affairs including influence if any on valuation of goods cleared to Suzuki Processors. Admittedly revocation of registration was done in 2012 and show cause notice was also issued two years before to the impugned period expired. Prima facie, it appears that the matter in controversy warrant extensive examination from various angles testing evidence rigorously. When PGO Processors is stated to have paid duty on the goods cleared valuation issue depends on several factors including the terms of the aforesaid notifications to be tested by an elaborate hearing. Prima facie , appreciating whim and caprice are alien to justice, and noticing that balance of convenience tilts in favour of the assessee, dispensation of pre-deposit till disposal of appeal would serve interest of justice - Stay granted. Issues Involved:1. Whether M/s PGO Processors Pvt. Ltd. is an independent unit or an extended limb of M/s Suzuki Textiles Ltd.2. Whether the duty should be paid on the processed fabrics at the price at which M/s Suzuki Textiles Ltd. sells the goods in the market.3. Whether the pre-deposit is required to be waived or a pre-deposit of Rs. 5 crores is necessary.Detailed Analysis:1. Independence of M/s PGO Processors Pvt. Ltd.:The Revenue contended that M/s PGO Processors Pvt. Ltd. is a facade and an extended limb of M/s Suzuki Textiles Ltd., as the entire finances and control were managed by M/s Suzuki Textiles Ltd. The investigation revealed that M/s PGO Processors did not have independent finance, and the factory was leased without proper permissions. Raw materials and coal quotas were transferred without sale invoices or consideration, and even the labor force was transferred from M/s Suzuki Textiles to M/s PGO Processors. Conversely, the appellant argued that M/s PGO Processors is a distinct legal entity, duly incorporated under the Companies Act, with separate plant, machinery, and finances. They highlighted that M/s PGO Processors had been given a separate registration by the department.2. Duty Payment on Processed Fabrics:The Revenue's position was that the duty should be paid based on the sale price of M/s Suzuki Textiles Ltd. since they considered M/s PGO Processors to be an extension of M/s Suzuki Textiles. The appellant, however, maintained that M/s PGO Processors was processing the goods independently and discharging their duty liability correctly as per the formula laid down by the Hon'ble Supreme Court in the case of Ujjagar Prints.3. Pre-deposit Requirement:There was a difference of opinion between the members on the issue of pre-deposit. One member believed that the appellant had a prima facie case and thus, the pre-deposit should be waived. This view was supported by the decision of the Hon'ble Rajasthan High Court, which recognized M/s PGO Processors as a distinct and separate manufacturer. On the other hand, another member held that M/s PGO Processors was not an independent unit and required a pre-deposit of Rs. 5 crores, considering the dubious practices and the financial and operational control exercised by M/s Suzuki Textiles over M/s PGO Processors.Separate Judgments:Judgment by Archana Wadhwa:Archana Wadhwa opined that M/s PGO Processors Pvt. Ltd. was an independent unit, considering the separate registration and legal recognition by the Hon'ble Rajasthan High Court. She highlighted that M/s PGO Processors was discharging their duty liability correctly and made out a good prima facie case. Thus, she allowed the stay application unconditionally.Judgment by Sahab Singh:Sahab Singh had a different view, emphasizing the financial and operational control of M/s Suzuki Textiles over M/s PGO Processors. He noted the lack of independent working capital, unauthorized transfer of coal quotas, and the use of manpower from M/s Suzuki Textiles. He concluded that M/s PGO Processors was not an independent unit and required a pre-deposit of Rs. 5 crores.Final Order:The third member, D N Panda, was referred to resolve the difference. He considered the balance of convenience and the prima facie case in favor of the appellant, deciding that the pre-deposit should be waived. Consequently, the stay petitions were allowed unconditionally.Conclusion:The judgment concluded that M/s PGO Processors Pvt. Ltd. should be considered an independent entity for the relevant period, and the pre-deposit requirement was waived, allowing the stay petitions unconditionally.