adjustment of demand with other unit

[Arun Aggarwal]

Sir

we have two units registered with central excise in which one of the partner is common and are in the same range of excise.

Excise officials wants to adjust/ hold the refund of one unit because of the demand in the other unit being having a common partner.

Both the units are manufacturing different products.

Pls advice the legal course of this situation.

Arun

[MADAN RAHEJA]

Action of department is not legally sustainable. It is not a case where one unit has been established a dummy unit of the other. There are numerous CESTAT decisions to the effect that mere commonality of one or more partners in two units is not sufficient to hold them as a single unit for denying SSI benefit or for treating them as related person for purpose of valuation under Central Excise. Same analogy is applicable in your case.

The legal course of action would be filing appeal if refund is denied this way.

[Arun Aggarwal]

Thanx

Any citation or circular would be really helpful

Arun

[MADAN RAHEJA]

On this issue there is a very old circular of Board i.e Circular number 6/92 dated 29-5-1992 issued from F. No. 213/15/1992-CX. 6. This circular is related to clubbing of clearances for denial/admissibility of benefit of SSI exemption, it is clearly stated in this circular that “If there are two firms with only some of the partners in common, each firm is entitled to separate exemption limit and hence the question of distributing the exemption may not arise”. This circular was relied in the case ofB.K.Office Needs reported at 2015 (4) TMI 241 - CESTAT CHENNAI

I am of the view that on same analogy, recovery of dues of a firm cannot be done by denying refund to another firm with one common partner. Relevant para of this circular is re-produced below for your information

The question whether different partnerships having common partners, are treatable as separate manufacturers of the same manufacturer, would be a question of fact in each case to be determined on the basis of such factors among other, like composition of the partnership, existence of the factory, licence, nature of goods manufactured etc. Different firms will be treated as different manufacturers for the purpose of exemption limit. But if a firm consisting of certain partners say A.B. & C. has got more than one factory, all these factories should, of course, be combined. Limited companies whether public or private, are separate entities distinct from the shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. If there are two firms with only some of the partners in common, each firm is entitled to separate exemption limit and hence the question of distributing the exemption may not arise. If one firm or one individual owns several factories, he or it gets exemption only in respect of one lot and the manufacturer being only one entity, there will be no question of distributing the exemption. Whether or not in the expression ‘by or on behalf of a manufacturer’ the expression ‘from one or more factories’ is added, the effect would be the same if the manufacturer is also the same. The expression ‘one or more factories’ only further clarified that whether the factory is one or more, it is the clearances by or on behalf of the same manufacturer which is to be taken into consideration for purpose of interpreting the exemption Notification. The matter requires to be viewed accordingly.

[Arun Aggarwal]

Thanks a lot sir.

Arun

[rajkumar shukla]

Unless it is held thru quasi judicial proceedings that both units are same, the refund can not be adjusted. in absence of any such order arising out of such proceedings( which in itself is appealable) refund can not be adjusted

AI Summary

Separate entity treatment prevents adjusting one firm's refund for another firm's tax demand; challengeable by appeal. Mere commonality of partners between two excise-registered units manufacturing different goods does not justify withholding or adjusting a refund of one unit for a demand against the other. Circular 6/92 and tribunal reasoning treat firms with only some common partners as separate manufacturers entitled to separate exemption limits; only where a quasi-judicial proceeding determines both units to be the same may clearances be combined. The appropriate remedy against an unlawful adjustment or denial of refund is an appeal.