TaxTMI 
TaxTMI 
2017 (3) TMI 604
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..... The Commissioner vide impugned order decided 34 show-cause notices. In the aforesaid order, the Commissioner had confirmed demand against M/s.Plasto Flex Industries and imposed penalty against the appellants. Penalties were also imposed against Shri Nilesh B Parikh and Jayant C Parikh under Rule 209A of the Central Excise Rules, 1944. The goods seized during the investigation were confiscated and option to redeem the same was extended on payment of Rs. 75,000/- in addition to the duty payable on the goods. During the investigation it was found that M/s.Miko Enterprises, M/s.Urvish Plastics and M/s.Plasto Flex Industries were having following constitution: i) M/s.Plasto Flex Industries Shri Nilesh b Parikh Shri Babubhai C Parikh Shri ....
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....iko Enterprises were availing two different notification for the same product manufactured by both of them. While Plasto Flex Industries were availing Modvat credit and Miko Enterprises was not availing Modvat. It was also deposed by Shri Jayant C Parikh that Miko Enterprises was receiving certain goods from Plasto Flex Industries and manufacturing final products and clearing the same directly. No invoices were raised for such supply of goods by Plasto Flex Industries to Miko Enterprises. He also admitted during his statement, this was done in order to retain the Modvat Credit in the account of Plasto Flex Industries. 1.2 During the investigations, statements of suppliers of raw-materials were also recorded. It was alleged in the notice th....
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....orities for manufacture of plastic profiles. Miko Enterprises also a partnership firm was established in 1970 and was engaged in the manufacture of pipes and extruded products of plastics. The said unit was not registered with the Central Excise authorities. Urvish Plastics came into existence in 1988 as a trading firm. Learned Counsel argued that all three firms came into existence and different point of time much before the search made by the Revenue in February 1992. These firms were not established just to avoid payment of duty. Learned Counsel argued that show-cause notices were raised from 1987 to January 1992 jointly against all the three firms and two partners, viz., Nilesh Parikh and Jayant Parikh. Ten more show-cause notices....
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....d the Tribunal vide its order dated 22/12/1995 remanded the same back in terms of its order dated 15/03/2005. Thereafter a total thirty four show-cause notices were taken up for adjudication. In the impugned order a demand of Rs. 38,60,438/- was confirmed without naming the entity against whom the demand was confirmed. In total out of thirty four notices, the Commissioner confirmed demands raised in the first nine show-cause notices partially, the rest of the demands were not confirmed. In this background, the learned Counsel for the appellants argued that it is not open to revenue to confirm the demand without specifying as against whom the same has been confirmed. He relied on the following decisions: a) Shiv Exix Industries -2005 (185)....
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..... He argued that supply of raw materials without reversal of credit can at best to considered wrongful availment of credit but does not amount to pervasive financial control. Moreover, seizure of some quantity of plastic profile cannot be a test for clubbing but can only attract penalty for non-entry of the material in the statutory records. He further argued that penalties have been imposed on two partners as well as on the firms. He argued that penalty cannot be simultaneously imposed on the partners as well as on the firm. For this assertion, he relied on the following decisions: a) Kam Deep Marketing - 2004 (165) ELT 206 (T) b) BC Sharma - 2000 (122) ELT 158 (T) 3. The learned AR relied on the impugned order. He particularly assert....
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....ted that the profits of three firms are clubbed together and shared between the partners as has been admitted by one of the partners. He argued that in terms of the decision of the Apex Court in the case of Modi Alkalies (supra), this amount to pervasive financial control and common interest. 4. We have gone through the rival submissions. We find that demands have been raised jointly against two firms and two partners. The impugned order does not specify as to the person against whom the demands have been confirmed. Both, the Revenue as well as other appellants, have invoked this ground for setting aside the impugned order. In the case of Shiv Exim Industries (supra), it has been held that for clubbing of clearances of two units it has to ....