2009 (6) TMI 918 - AT - Central Excise

SSI exemption - clubbing of clearances - mutuality of interest - Held that - The appellants are two Private Limited Companies. They have separate existence. The investigation reveals that the clearances of one unit were done with the other and vice versa in order to remain with the exempted limit and thereby evading payment of Central Excise duty. If that is the case the investigation ought to have decided the real clearances of each unit and demanded the duty accordingly in respect of each unit. However in the present case the duty has been demanded collectively from both the units. If the Department feels that out of the two units one unit is dummy then the dummy unit should have been identified. In that case the value of the clearance of dummy unit could have been clubbed with the clearance of the real unit and duty demanded. This has not been done. Collective demand by clubbing clearances of two Private Limited Companies is not sustainable - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Clubbing of clearances for the purpose of SSI exemption.
2. Demand of duty and imposition of penalty on the units and their directors.
3. Determination of the real clearances of each unit.
4. Applicability of Board's Circular No. 6/92, dated 29-5-1992.
5. Legal precedents related to clubbing of clearances.

Detailed Analysis:

1. Clubbing of Clearances for SSI Exemption:
The primary issue was whether the clearances of M/s. Ennar Cements Pvt. Ltd. and M/s. Seshashaila Cements Pvt. Ltd. could be clubbed together for the purpose of SSI exemption. The Department argued that the units were managed by the same family and cleared goods under each other's invoices to fraudulently avail the SSI exemption. The appellants contended that both companies were independent entities with separate registrations and geographical locations. They cited Board's Circular No. 6/92, which states that limited companies are distinct entities entitled to separate exemption limits.

2. Demand of Duty and Imposition of Penalty:
The Department issued a Show Cause Notice proposing the clubbing of clearances and demanded duty from both units collectively. The Adjudicating authority confirmed the demand but left it to the noticees to decide the payment distribution. The appellants argued that the Department should have determined the quantity cleared under each unit's invoices and demanded duty accordingly, rather than collectively.

3. Determination of Real Clearances:
The investigation revealed that the clearances of one unit were done under the invoices of the other to remain within the exempted limit. The appellants argued that the Department should have identified the real clearances of each unit and demanded duty accordingly. The Commissioner failed to identify any unit as a dummy and instead demanded duty collectively, which was contested by the appellants as being contrary to legal precedents.

4. Applicability of Board's Circular No. 6/92:
The Commissioner acknowledged that each company was a separate entity but concluded that both units were not independent and should be treated as a single manufacturer. This conclusion was challenged by the appellants, who argued that the Circular clearly stated that limited companies are entitled to separate exemption limits, making the collective demand illegal.

5. Legal Precedents:
The appellants cited several judgments to support their case:
- Sapthagiri Cements Pvt. Ltd. v. CCE: Clearances of distinct legal entities cannot be clubbed merely due to mutual interest.
- P.K. Industries v. CCE: Clubbing not justified without specific allegations of dummy units and evidence of financial flowback.
- Gajanan Fabrics Distributors v. CCE: Demand should be confirmed only against the real unit if others are found to be dummies.
- Alpha Toyo Ltd. v. CCE: Common managerial control and interest-free loans do not justify clubbing without evidence of financial flowback.
- Renu Tandon v. Union of India: Absence of common funding and financial flowback negates clubbing.
- Vivomed Labs (P) Ltd. v. CCE: Separate registrations and absence of financial flowback justify independent treatment.
- Swastik Engineering Works v. CCE: Common facilities and relationships do not warrant clubbing without ownership or control evidence.
- Super Star v. CCE: Independent existence and separate registrations support non-clubbing.
- Padma Packages (P) Ltd. v. CCE: Common directors in limited companies do not justify clubbing.

Conclusion:
The Tribunal found that the collective demand by clubbing the clearances of two Private Limited Companies was not sustainable. The impugned order was set aside, and the appeals were allowed with consequential relief, if any. The judgment emphasized the importance of treating distinct legal entities separately unless there is clear evidence of dummy operations or financial flowback.

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