2019 (4) TMI 928 - AT - Central Excise

Tribunal overturns Revenue demand, upholds SSI exemption for M/s Fine. Lack of evidence cited.

The Tribunal set aside the Revenue's demand of duty amounting to Rs. 1,28,96,576 against M/s Fine, ruling that the denial of SSI exemption was ... SSI Exemption - dummy unit or independent unit? - exemption under Notification No. 50/2003-CE dt. 10.06.2003 availed by the receiving unit - case of Revenue is that that M/s Fine is clearing the goods to the Company under the invoices of M/s Fewa, who is availing the area based exemption under Notification No. 50/2003 dt. 10.06.2003, therefore, M/s Fine is not entitled to avail the benefit under exemption Notification - HELD THAT:- The Company out of the seized goods has purchased the goods valued at ₹ 52,79,914 from M/s Fewa, which was manufactured in their premises and the same were found recorded in the statutory records by the visiting officers - The appellants submitted the details of the purchase of rest of goods but the same has not been examined, therefore, the demand of ₹ 5,87,376/- on seized goods at the premises of the Company is not sustainable, accordingly no redemption fine and penalty is imposable as goods are held not liable for confiscation. Demand of ₹ 3,31,242/- has been confirmed on the basis of packing material recovered from the Company alleging that M/s Fine has clandestine removed the gold series of switches to the Company on the basis of packing material - HELD THAT:- Sh. Harjinder Singh was cross examined and denied his statement and submitted that the same has been dictated to him and no other corroborative evidence has been produced by the Revenue in support of the allegation - demand not sustainable. Demand of ₹ 17,43,264/- has been raised on MCB/Isolators - it was alleged that MCB/Isolators manufactured by M/s Fine were sent to M/s Fewa for their clearance - HELD THAT:- M/s Fewa purchased MCB/Isolators parts/components thereto from M/s Shiva Electrical Corporation, Gagret, for which copies of invoices were produced that the authority below has not given any credence to the said documents and held that MCB/Isolators manufactured by M/s Fine were sent to M/s Fewa for their clearance and M/s Fewa returned the same to M/s Fine. As the demands have been confirmed without examining the invoices issued by M/s Shiva Electrical Corporation, Gagret. Further, no variations of stock were found - demand not sustainable. Demand of ₹ 9,55,550/- has been confirmed alleging that M/s Fewa sent the raw material and packed material to M/s Fine, whereas M/s Fewa has raised the invoices in respect of the finished goods - HELD THAT:- T he allegation itself is contradictory that M/s Fine is manufacturing the goods and clearing in the name of M/s Fewa when machineries are installed at M/s Fewa who was found manufacturing the goods during the course of investigation itself. In the absence of any positive evidence, the allegation is not sustainable which is alleged on presumptions only, therefore, the demand is not sustainable - demand set aside. Demand of ₹ 2,04,043/- has been confirmed on the basis of the document showing receipt of 1,03,560 ps. Switches from M/s Fine by the Company - HELD THAT:- It is alleged that M/s Fine is procuring raw material clandestinely and manufacturing the goods and clearing clandestinely. We find that the said allegation is on the basis of third party documents from M/s Fine without any corroborative evidence - demand not sustainable. Demand of ₹ 18,02,807/- - it is alleged that M/s Fine procured packing material and other inputs used in manufacture of their final products in excess of their recorded clearances - HELD THAT:- Sh. Gaurav Lekhi during the cross examination has stated that they supplied goods only to the extent mentioned on the bill and never supplied extra quantity. They never cleared/sold the goods without invoice or against cash payment to M/s Fine or M/s Fewa. We find that the said demand is on the basis of suspicion and no corroborative evidence of clandestine manufacture, transport, flow back, electricity consumption have been brought on records - demand not sustainable. Demand of ₹ 72,72,294/- has been confirmed against M/s Fine on the ground that M/s Fine is manufacturing the goods and clearing the same in the name of M/s Fewa to avail SSI exemption - HELD THAT:- As no corroborative evidence has been produced by the Revenue, therefore, clearances of M/s Fine cannot be clubbed with the clearances of M/s Fewa. In these circumstances, M/s Fine is entitled to avail SSI exemption as M/s Fewa and M/s Fine are two independent units, which are having separate machinery and manufacturing and clearing the goods independently - demand set aside. Appeal allowed in toto. Issues:- Allegation of clandestine clearance and denial of SSI exemption benefit to M/s Fine.Analysis:The case involved three units: two manufacturing units (M/s Fine and M/s Fewa) and one trading unit (Company). The Revenue alleged that M/s Fine was clearing goods to the Company under M/s Fewa's invoices to avail area-based exemption, leading to a demand of duty amounting to Rs. 1,28,96,576. The appellants argued that M/s Fewa and M/s Fine were independent units, manufacturing different goods, and entitled to their respective exemptions. The Revenue's case was based on the assumption that M/s Fine was not entitled to SSI exemption due to the alleged clearance to the Company under M/s Fewa's invoices.The duty demanded was broken down into various components, including goods cleared by M/s Fine on M/s Fewa's invoices, goods received by the Company, alleged clandestine clearance based on packing material, denial of SSI benefit, among others. The Tribunal found that the demand of Rs. 5,87,376 on seized goods at the Company's premises was not sustainable as no discrepancies were found during verification. The demand of Rs. 3,31,242 based on packing material recovery was deemed unsustainable due to lack of corroborative evidence.Further demands related to MCB/Isolators, raw material sent by M/s Fewa to M/s Fine, and other allegations were also scrutinized. The Tribunal noted that demands were not sustainable without concrete evidence. For instance, the demand of Rs. 9,55,550 alleging raw material sent by M/s Fewa to M/s Fine was found contradictory as machinery at M/s Fewa indicated independent manufacturing. Similarly, demands based on third-party documents without corroboration were deemed unsustainable.Ultimately, the Tribunal concluded that the Revenue failed to provide sufficient evidence to support their allegations. As M/s Fine and M/s Fewa were independent units with separate operations and machinery, the denial of SSI exemption to M/s Fine was unjustified. The Tribunal set aside the impugned order and allowed the appeals filed by the appellants, emphasizing the lack of substantiated claims by the Revenue.