TaxTMI 
TaxTMI 
2012 (10) TMI 454
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....rder-in-Original dated 4-2-94 was pleased to confirm duty of Rs. 34,24,435.43 and Rs. 22,59,041.04 from the said M/s. BC and M/s. BL respectively and imposed penalty of Rs. 2 lakh on both the assessees. No duty was demanded from M/s. BHPL but a penalty of Rs. 5 lakhs was imposed on M/s. BHPL. Aggrieved by such an order, all the assessees preferred an appeal to the Tribunal and Tribunal vide its final order dated 24-3-99 set aside the impugned order and remanded the proceedings to the adjudicating authority to reconsider the issue afresh. The impugned order today is in de novo proceedings wherein the adjudicating authority has, after considering the submissions made by the appellants before him has passed the following order : (i) I, under Section 11A(2) of Central Excise Act, 1944, confirm the duty demanded in the impugned Show Cause Notice amounting to Rs. 34,24,435.43 (Rupees Thirty Four Lakhs Twenty Four thousand Four Hundred Thirty Five and Paise Forty Three only) on M/s. Balsara Hygiene Products Ltd. & M/s. Besterna Chemicals Ltd., GIDC. Vapi and direct them to pay the confirmed duty amount forthwith. (ii) I under Sec....
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.... is his submission that the impugned order purports demand of duties from the M/s. BHPL, M/s. BC and M/s. BL for the respective clearances, it shows that the adjudicating authority having demanded duty from alleged dummy units for the respective clearances would recognize their independent existence. It is his submission that on this ground itself the impugned order is liable to be set aside. He would rely upon the judgment of the Apex Court in the case of Gajanan Fabrics Distributors - 1997 (92) E.L.T. 451 (S.C.) for this proposition. He would submit that this ratio was followed by the Tribunal in the following decisions : * Commissioner of C. Ex., Chandigarh v. Shiva Exim Enterprises reported in 2005 (185) E.L.T. 169 (Tri. - Del) * Commissioner of Central Excise, Meerut v. Varco Sara India Private Limited reported in 2004 (171) E.L.T. 79 (Tri. - Del) * Electro Mechanical Engg. Corpn v. Commissioner of Central Excise, Jaipur reported in 2003 (152) E.L.T. 194 (Tri. - Del) * Commissioner of Central Excise,....
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..... 336 (Tri. - Bang.) * Commr. of C. Ex, Mangalore v. Sushil Chemicals reported in 2008 (230) E.L.T. 117 (Tri. - Bang.) * Universal Industries v. Commissioner of Central Excise, Pune reported In 2005 (188) E.L.T. 200 (Tri. - Mumbai) * Special Machines v. Commissioner of Central Excise, Delhi reported in 2004 (169) E.L.T. 215 (Tri. - Del.) * Bright Gems Company v. Commissioner of Central Excise, Madurai reported in 2004 (173) E.L.T. 173 (Tri. - Chennai) * Alpha Toyo Ltd v. Collector of Central Excise, New Delhi reported in 1994 (71) E.L.T. 689 (Tribunal) * K.R. Balachandran v. Commissioner of C. Ex., Coimbatore reported in 2003 (151) E.L.T. 68 (Tri. - Chennai) 3.2 It is his submission that in any case the extended period on limitation cannot be invoked as all the appellants were granted separate registration and their clearances during the earlier period were never sought to be clubbed and the appellants have b....
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....PL in the year 1977 & 1978 itself goes to prove that the transactions between the two appellants M/s. BHPL and M/s. BC, were common business transaction on commercial terms. Ld. adjudicating authority has recorded that M/s. BC had given loan to M/s. BL, Besta Cosmetics Ltd., Balsara Research Products, etc. Commercial Pvt. Ltd., and several other companies. It is his findings that three units are either directly managed or controlled by M/s. BHPL and hence there is an interlink between M/s. BHPL, M/s. BC and M/s. BL. We find that the said findings recorded by the adjudicating authority are shorn of evidence which could indicate that M/s. BHPL exercised summary control over M/s. BC in any form. Giving of loan by M/s. BC to any company, the said company whether it is controlled, directly managed by M/s, BHPL is not proved on record and the said loans given by M/s. BC to various people cannot be called in question as they were clearly indicative of transactions which were sought to be made by M/s. BC. The learned adjudicating authority has tried to justify the clubbing of the clearances by indicating that M/s. Besta Cosmetics Ltd., was a case of advance for supply of goods to M/s. Best....
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....making the duty demand cannot be sustained in the admitted facts of the case." "As it is the two units were in existence before the Notifications came into force and this has been accepted by the learned Collector and in this background it was necessary for the department to establish with evidence that in fact the operations of the two units were part of the same business event. While the operations of the appellants may be entirely colourable, we cannot say that the case against the appellants has been established beyond a reasonable doubt. We, therefore, give the benefit of doubt to the appellants and hold that the case against them has not been proved by the authorities with requisite evidence and set aside the order of the lower authority with consequential relief. We, therefore, allow the appeal in the above terms." 9. In our considered view, the adjudicating authority should have followed the law laid down by the higher judicial fora i.e. Tribunal on this point. 10. Another point on which the adjudicating authority has confirmed the demands raised on the appellant is on the ground that the entire products of the units of M/s. BL and M/s. BC were sold to M/....