TaxTMI 
TaxTMI 
2018 (1) TMI 1209
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....als Limited (TCL for short). There was another unit in the name of M/s. Neelam Aqua and Speciality Chemicals Private Limited (NASCPL for short) having a Director namely Dr. Suresh Singh, husband of Smt. Kusum Rani Mathur, Proprietor and her two sons Shri Awadhesh Mathur and Shri Mithlesh Mathur. This unit is also manufacturing the same product under the brand name Neelco, Neelcoat, Flocsep, Floculent. These brands were not registered and Shri Mithlesh Mathur, Director was looking after the day to day affairs of the appellants. On 04.02.2008, the unit of the appellant was visited by the Central Excise officers and it was found that 94 bags of finished goods were lying there of brand name NASCPL. On investigation, it was explained that due to shortage of space, the said quantity was kept there, but the said goods, having the value of Rs. 50,760/-,were seized. After investigation, three show cause notices were issued to the appellant for the period 2005-06 to 09/2009, alleging that appellant is using the brand name of NASCPL therefore, they are not entitled to avail benefit of SSI exemption Notification No. 8/2003-CE dated 01.03.2003. As the appellant has cleared the goods during the ....
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..../s. SIP Industries vs. CCE vide Final Order No. A/54334/2017-EX [DB] dated 23.06.2017. 4. With regard to issue of clandestine clearance on the strength of parallel invoices, it is his submission that supplies were made to M/s.TCL. As per agreement, the appellant was clearing these goods on proforma invoices and payment was required to be made by TCL on performance basis hence the appellant raised final invoice on monthly basis. These final invoices were provided by M/s. TCL to excise authorities and the said fact was explained by Shri Arvind Simlot on 04.02.2008, at the time of investigation and has been further explained by Shri Mithlesh Mathur in his statement recorded on 14.02.2008. As regards the other demand raised on account of GRs stating that the quantity mentioned in the invoices is less than the actual invoices raised by the appellant, it is his submission that as per agreement between the appellant and M/s. TCL, the bills is to be raised on the performance basis and therefore, the bills were raised on the advice given by M/s. TCL on proforma based as per the purchase agreement. It is his submission that NASCPL is registered with the Central Excise authorities and were....
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....de the impugned orders. 5. On the other hand ld. AR supported the impugned orders and submitted that it is a fact on record that NASCPL is a Private Limited Company and the appellant is not the Director of the said Company. Moreover, the Director of a Private Limited Company is not related to each other, therefore, the appellant is using the brand name of others and is not entitle to SSI exemption. It is his submission that parallel invoices as recovered from the premise of the appellant, therefore demand of duty is rightly confirmed on the appellant alleging that appellant is clearing goods clandestinely without issuing the proper invoices. Therefore, ld AR prays that impugned orders are to be upheld. 6. Heard the parties and considered the submissions. On careful consideration of the submissions made by both sides, we find that the demand has been confirmed against the appellants on two grounds; (a) that appellants are using the brand name of others therefore, they are not entitled to avail the benefit of SSI exemption Notification No.08/2003-CE dated 01.03.2003; and (b) that the appellant is clearing the goods on the strength of parallel invoices, without....
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....03. As regards issue (b) above that appellant is clearing the goods on the strength of parallel invoices clandestinely, without payment of duty. At the time of investigation and as per the purchase agreement, the appellant was required to supply goods as per following terms :- "SUPPLY, INCORPORATION, PERFORMANCE MONITORING, SUPERVISION OF NELCO 8060 DEFOAMER AT OUT PHOSPHORIC ACID PLANT FOR SMOOTH RUNNING OF OUT PRODUCTION WIHTOUT ANY DISRUPTION. COST OF USAGE OF DEFOAMER NOT TO EXCED Rs. 65/- T OF P205 PRODUCED. THIS PRICE IS INCLUSINVE OF ALL TQAXES, DURIES AND FREIGHT CHARGES FOR DELIVERY OF DEFOAMER AT OUT HALDIA PLANT. ALSO IT WILL COVER THE COST OF MANPOWER AND MACHINES. ALL OTHER TAXES AND DUTIES ALONG WITH SERVICE TAXES, IF ANY ARISING OUT OF APPLICATION OF THIS DEFOAMER WILL BE BORN BY YOU. ACTUAL PRODUCTION WILL BE CERTIFIED BY THE PLANT MANAGER MONTHLY BASIS AND WILL BE GIVEN TO YOU FOR RAISING BILLS. ALL TERMS AND CONDITIONS WILL BE AS PER ANNEXURE 1 (MOU COPY) ALREADY WITH YOU" As per the said position, the invoices are to be raised on monthly basis as per the quantities received by M/s. TCL. Admittedly, at the time of clearances of goods, the appellant ....