TaxTMI 
TaxTMI 
2003 (9) TMI 185
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....ffect from 1975. He, further, mentioned that on 7-8-91, the Central Excise Officers carried out search of their factory premises as well as the factory premises of M/s. Shree Electricals, M/s. Anand Auto Electricals and M/s. Shree Stampings, Appellant Nos. 2, 3 and 4 respectively; that a show cause notice, dated 2-6-1992 was issued alleging that the clearances of the Appellant Nos. 1 to 4 for the period from April, 1987 to March, 1992 were liable to be clubbed and that upon such clubbing all the four firms were ineligible for the benefit of the SSI exemption under Notification No. 175/86-C.E., that the Notice demanded the following duty from the Appellant Nos. 1 to 4 as under: (i) Elemec Industries Rs. 22,14,597.95 (ii) Shree Electricals Rs. 31,83, 927.90 (iii) Anand Auto Electricals Rs. 19,15,438.90 (iv) ....
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....operative part of the Order is to be understood in the light of the contents of the petition. 2.4 The Appellate Tribunal, vide Final Order No. 873/2000-B, dated 8-6-2000 - [2000 (120) E.L.T. 198 (Tribunal)] remanded the matter to the Commissioner to reconsider the issue of clubbing on merits. Subsequent to the issue of Notice, dated 2-6-1992, eleven further notices were issued to the appellants for the period from April, 1992 to September, 2000. The Commissioner, under the impugned Order, has confirmed the demand of duty amounting to Rs. 91,29,138.40 against the appellant No. 1 though the notice, dated 2-6-92 only sought to demand Rs. 22.14 lakhs; that similarly he has confirmed the demand of duty of Rs. 1,38,48,580.44 against the appellant No. 1 though the duty sought to be demanded in 11 notices was only Rs. 44.04 lakhs and show cause notices at Serial Nos. 12 to 61 mentioned in Para 13 of the impugned Order were not issued to the Appellant No. 1. 3. The learned Counsel submitted that the Adjudicating Authority can not confirm the duty more than the duty demanded in the show cause notices; that by demanding duty in excess of amount demanded in the notices, the C....
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....nit is on paper or that there is flow back of funds, then it was mandatory to issue show cause notice to the other unit. 4. The learned Advocate also mentioned that the Tribunal vide Order No. 873/2000-B, dated 3-6-2000 has remanded the matter to the Commissioner for readjudication; that the Tribunal has remanded the matter for readjudication in respect of M/s. Elemec Industries alone as the Revenue had filed appeal only against them; that the Mysore High Court in the case of Pathikonda Balasubba Setty v. C.I.T. (1967) 65 ITR 252, considered the question whether the Appellate Tribunal had jurisdiction to set aside the entire Order of the Appellate Assistant Commissioner and direct a disposal of the appeal afresh by examining the question of unaccounted stock which was not in contest before it as well as cash credits and bank deposits when the appeal by the Department was only in regard to additions under gross profit. The High Court has held that the powers of the Tribunal are limited to the subject-matter of the appeal and the Tribunal had no power to make an enhancement beyond the figure fixed by the officers. The learned Advocate thus contended that the Tribunal h....
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....exemption. He relied upon the decision in Renu Tondon v. Union of India, 1993 (66) E.L.T. 375 (Raj.) wherein Rajasthan High Court has held that clubbing of clearances of two units - one owned by father-in-law and the other by daughter-in-law and work of both units looked after by her husband is wholly unjustified in absence of the most important aspect about having common funding and financial flow back. Reliance has also been placed on the decision in the case of Bentex Industries v. CCE, New Delhi, 2003 (151) E.L.T. 695 (T) wherein the Tribunal has held that all the facts and circumstances that both the companies were working in the same building, had a shared staff and machinery, that Managing Director of one Company was proprietor of another, the brand names being used were similar with little variation, common telephone facilities, payment in respect of one unit was being received by another, "are insufficient in the eye of law for clubbing the clearances of both the companies. The duty has been demanded in the show cause notice from both the companies and the same had been even confirmed ….. against both of them. This fact itself is enough to prove that the Department itsel....
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.... decision relied upon by the learned Advocate for the Appellants are not applicable to the facts of the present matters; that the decision in Maganlal Nandlal & Sons, supra, is not applicable as in the present matter, the Tribunal has finally decided the Appeal, filed by the Revenue, and remanded the matter for re-adjudication; that the decision in the case of K.R. Balachandran is also not applicable as in that case, show cause notices were not issued to the units to be treated as dummy units whereas in the present matters, show cause notices have been issued to all the units. 7. In reply, learned Advocate, referred to the years in which separate units had been started and their constituents partners and emphasised the facts that in none of the units, all partners are common. 8.1 We have considered the submissions of both the sides. Notification No. 175/86-C.E. which provides exemption from payment of duty to a small- scale unit contains a provision that notification shall not apply if the aggregate value of clearances of all excisable goods for home consumption by a manufacturer, from one or more factories had exceeded specified value in the preceding financial y....
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....ctive of any view of the same that might have been taken on different evidence led in another case." Accordingly, we do not agree with the learned Senior Departmental Representative that after the Final Order passed by the Tribunal, Commissioner was competent to re-adjudicate the matter against all the parties. This view gets strengthened also from the judgment of the Supreme Court in the case of Hindustan Safety Glass Works Ltd. wherein the High Court held that the proviso to Section 11A was inapplicable as there was no wilful suppression and at the end of the judgment it had been said that the show cause notice is unsustainable and therefore quashed. The Hon'ble Supreme Court has held as under : "But that has to be read along with the entire judgment which makes it clear that the challenge was only to the applicability of the proviso to Section 11A and not to the notice in so far as it related to the period within six months from the date of the notice. This is how the judgment including its operative part has to be understood from which it is clear that there was neither any challenge to the notice in so far as it related to the period within six months of the notice nor was ....