TaxTMI 
TaxTMI 
2024 (9) TMI 1023
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....nue that on specific intelligence that M/s Mica Mold, Sundarnagar, Jamshedpur (hereinafter referred to as MM) in collusion with M/s Mica Mold (p) Ltd., Sundarnagar, Jamshedpur (hereinafter referred to as MMPL) are indulged in evasion of duty by misusing small scale Exemption Notification No.08/2003-CE as amended as well as clandestine removal of the goods, factory as well as office premises of MM/MMPL, their office premises, residential premises of proprietor of MM/Director of MMPL and residential premises of staff of MM were searched at a time. During search some incriminating documents were recovered. The Indian currency worth Rs. 1.31 crore were also recovered from the office premises of MM & MMPL and the same were detained. Similarly during search operation at residential premises of one of the staff of MM, Indian currency note worth Rs.3.0 crore were recovered and detained. Subsequently, out of detained Indian currency notes, currency notes of Rs. 1,22,56,966/- were seized under Section 110 of the Customs Act read with Section 12 of the Central Excise Act, 1944. 3. It is the further case of the Revenue that on scrutiny of seized documents, it was found that MM have wrongly ....
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.... split the value of clearances into two firms. 7. Based on the aforesaid investigation and the documents available on records and the statement recorded u/s 14 of the CEA, a show-Cause Notice was issued to the Respondent Assessee by the Department. 8. The case was decided against the Assessee and the adjudicating authority Vide O-I-O No.06-09/ Commissioner/2011 dated 31.03.2011 / 13.04.2011 confirmed the amount of Rs.1,42,35,345/-, Rs.40,39,548/-, Rs.12,22,888/- and Rs.6,84,451/- along with interest and penalty. 9. Being aggrieved by the aforesaid O-I-O dated 31.03.2011/13.04.2011, the Assessee/Respondent filed an Appeal before the learned CESTAT, Kolkata which was registered as Excise Appeal No. 648-654 of 2011. 10. The learned CESTAT, Kolkata vide Order dated 22.08.17 remanded the matter after setting aside the Penalty. 11. Against the aforesaid order of CESTAT, the present appeal has been filed. 12. It is evident from the factual aspect that the original authority altogether has formulated six issues i.e., - (1) Whether value of clearances of MM and MMPL are to be clubbed for determining Central Excise duty payable as MMPL? (2) Whether duty of....
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....amount of duty as determined above and ordered for payment alongwith interest and penalty within thirty days of the receipt of this order. Indian currency amounting to Rs. 1,22,56,966/- is confiscated absolutely under Section 121 of the Customs Act, 1962 applicable to Central Excise by virtue of provision contained in Section 12 of the Central Excise Act, 1944. (4) In respect of all four show cause notices, I impose penalty on M/s Mica Mold Pvt. Ltd., Jamshedpur, Sri Arun Agrawal, Proprietor of M/s Mica Mold, Jamshedpur & Director of M/s Mica Mold Pvt. Ltd., Jamshedpur as well as on Sri Harsh Agrawal under rule 26 of the Central Excise Rules, 2002 as under:- (a) M/s Mica Mold Pvt. Ltd., Jamshedpur Rs. 50,00,000/- (Rupees fifty lakh) only. (b) Sri Arun Agrawal, Proprietor of M/s Mica Mold and Director of M/s Mica Mold Pvt. Ltd. - Rs. 50,00,000/- only. (c) Sri Harsh Agrawal, Director of M/s Mica Mold Pvt. Ltd., Jamshedpur - Rs.20,00,000/- (Rupees twenty lakh) only." 14. The assessee, being aggrieved with the aforesaid order, has preferred appeal before the Tribunal being Excise Appeal No.648-654 of 2011. 15. The Issue Nos. 1, 2, 3 an....
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....t and separate entity being the Proprietary concern and Private Limited Company. 21. The reference has also been made that the assessment of turnover for Income Tax purposes was being made separately and their factory premises are also differently located. The Tribunal has come to the conclusion that only because the Directors of the Private Limited Company are the sons of the Proprietor of the firm, does not mean that they are the same business entities, especially when in the subsequent assessment year the Department has accepted these facts. 22. The ground, therefore, has been raised that without taking into consideration the fact finding arrived at by the original authority on appreciation of the relevant documents, coming to the conclusion by assigning the reason that Directors of the Private Limited Company are the sons of the Proprietor of the firm, does not mean that they are the same business entities. 23. It has been contended that it is not only that Directors of the Private Limited Company are the sons of the Proprietor of the firm, rather, even the fact about the mutuality of interest between the two units has been found to be established on consideration of t....
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....aph-7 of the impugned order passed by the learned Tribunal, therefore, suffers from no error. Consideration 32. Heard learned counsel for the parties, gone across the pleading as also the finding recorded by the original authority as well as the appellate forum. 33. It is evident from the factual aspect, which is not in dispute, that altogether six issues were there but this appeal has been preferred with respect to the Issue No.1 which has been decided against the assessee and which, on challenge, has been reversed by the appellate forum, the Tribunal. 34. The learned counsel appearing for the Revenue has emphatically argued by referring the consideration made by the Assessing Officer as has been taken note in paragraph 10.1.2 of the order passed by the original authority. This Court, in order to appreciate the sane, needs to refer herein the finding so recorded at paragraph 10.1.2 passed by the original authority, which reads hereunder as : - "10.1.2 The two units manufacture similar goods, selling to the same customer, i.e. Indian Railways. As revealed from documents placed as Annexure-1 of this Order, both MM & MMPL are recognized by their customer i.e Indi....
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....s reversed the said finding by taking into consideration the fact that both the business entitles are different having distinct and separate entity being Proprietary concern and Private Limited Company as also only because the Directors of the Private Limited Company are the sons of the Proprietor of the firm does not mean that they are the same business entities. Therefore, the learned Tribunal, while considering the aforesaid issue, has only gone into the issue of entities which led the learned Tribunal to come to the conclusion that since both the units are having distinct and separate entity being the Proprietary concern and Private Limited Company and, therefore, the finding which has been recorded by the original authority cannot be said to be just and proper. 40. But, this Court is of the view that when the consideration has been given by the original authority by taking into consideration the various documents, i.e., Stock Register for Brush Holder etc. and hence, it was incumbent upon the appellate authority to re-appreciate the said documents for the purpose of coming to the conclusion and not only by going through the identity of both the firms, i.e., one being the Pr....
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....Karnal and Others v. M/s Gopi Nath & Sons and Others [1992 Supp (2) SCC 312] wherein, at paragraph 7, the Hon‟ble Apex Court has observed as under :- "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court to reappreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness-as distinguished from the legal permissibility-of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of ....