2017 (12) TMI 222 - AT - Central Excise

Tribunal Upholds Decision: Appellant Company Not Liable for Dummy Units, SSI Exemption Denied

The Tribunal ruled in favor of the appellant-company, finding that M/s. AGK Packers and M/s. Packers India were independent entities and not dummy units ... SSI Exemption - N/N. 9/2001-CE dated 1.3.2001 as amended - corrugated boxes - allegation of the department is that the clearances made by M/s. Packers India for the period till it was taken over by the appellant-company as well as the clearances of M/s. AGK Packers, another partnership firm is to be clubbed with the clearances of the appellant-company and to be treated as one unit so as to deny SSI exemption as the turnover after clubbing exceeded the prescribed limits - Held that: - On scrutiny of records of M/s. AGK Packers and the appellants, it was revealed that the partners of M/s. AGK Packers ShriT. Kumararaj and Shri T. Asokan were also directors of the appellant company - the appellant company was incorporated in the year 1989 and has later taken over the assets and liabilities of M/s. Packers India with effect from 1.10.2003. After such takeover of the assets and liabilities, M/s. Packers India, in our view, does not have any individual existence. So the contention of the department that the clearances made by M/s. Packers India upto 1.10.2003 has to be clubbed with that of the appellant company does not make legal sense. As already mentioned, the corrugated boxes became leviable to central excise duty only with effect from 1.3.2001. Clubbing of clearances of clearances of M/s. AGK Packers - dummy units - Held that: - When M/s. Packers India was taken over by the appellant company, which is a company registered under the Companies Act, the said unit could no longer be considered as a separate unit so as to club the clearances of the unit alleging it to be a dummy unit of the appellant company - Merely because Shri T. Kumararaj and Shri T. Asokan are active partners in M/s. AGK Packers and also the appellant company, it cannot be said that M/s. AGK Packers is a dummy unit of the appellant-company. Validity of SCN - separate notice has not been issued to M/s. AGK Packers and M/s. Packers India, though the department alleges that these are dummy units - Held that: - The Tribunal in various cases has taken a consistent view that the dummy unit has also to be put into notice for clubbing the clearances with another unit especially when the element of their independent existence is denied - non issuance of SCN to the alleged dummy unit would vitiate the proceedings. CBEC Circular No. 6/92 dated 29.5.1992 clarifies that the clearances of a partnership firm cannot be clubbed with that of a company even though they may be having common partners / directors - In the present case, the department has been carried away by the fact that Shri T. Kumararaj and Shri T. Asokan who are partners in M/s. AGK Packers is also the Directors in the appellant-company. This alone cannot be a ground for clubbing the clearances. Appeal dismissed - decided against Revenue. Issues Involved1. Clubbing of clearances of M/s. Packers India and M/s. AGK Packers with the appellant-company.2. Denial of SSI exemption to the appellant-company.3. Applicability of CBEC Circular No. 6/92 dated 29.5.1992.4. Issuance of show cause notice to alleged dummy units.Detailed Analysis1. Clubbing of ClearancesThe primary issue was whether the clearances of M/s. Packers India and M/s. AGK Packers should be clubbed with the appellant-company. The department argued that M/s. Packers India and M/s. AGK Packers were managed by the same individuals who were also directors of the appellant-company, thus justifying the clubbing of clearances. However, the Tribunal found that M/s. AGK Packers had separate income tax registration, sales tax registration, central excise registration, electricity connection, SSI registration, bank account, and workforce. The Tribunal concluded that M/s. AGK Packers was an independent entity and not a dummy unit of the appellant-company. Therefore, clubbing the clearances was not justified.2. Denial of SSI ExemptionThe department sought to deny the SSI exemption to the appellant-company by clubbing the clearances of M/s. Packers India and M/s. AGK Packers. The Tribunal noted that after the appellant-company took over M/s. Packers India, the latter ceased to have an individual existence. The Tribunal also observed that M/s. AGK Packers was a separate entity with its own excise registration and was clearing finished products by paying duty and availing CENVAT credit. Consequently, the denial of SSI exemption based on clubbing was not legally sustainable.3. Applicability of CBEC Circular No. 6/92The Tribunal referred to CBEC Circular No. 6/92 dated 29.5.1992, which clarifies that the clearances of a partnership firm cannot be clubbed with that of a company even if they have common partners or directors. The Tribunal found that the department was influenced by the fact that the same individuals were involved in both entities. However, this alone was insufficient to justify clubbing, as the partnership firm and the company were distinct legal entities.4. Issuance of Show Cause Notice to Alleged Dummy UnitsThe Tribunal highlighted that separate show cause notices had not been issued to M/s. AGK Packers and M/s. Packers India, despite the department's allegations that these were dummy units. Citing the case of Commissioner of Central Excise, Chennai Vs. Urbane Industries, the Tribunal emphasized that non-issuance of a show cause notice to the alleged dummy unit would vitiate the proceedings. The Tribunal found that the Commissioner (Appeals) had correctly analyzed this issue and followed the consistent view of the Tribunal in similar cases.ConclusionThe Tribunal concluded that the department had not provided sufficient evidence to establish that M/s. AGK Packers and M/s. Packers India were dummy units of the appellant-company. The clearances of these entities could not be clubbed with those of the appellant-company, and the denial of SSI exemption was not justified. The Tribunal upheld the order of the Commissioner (Appeals) and dismissed the appeals filed by the department.