2009 (1) TMI 195 - AT - Central Excise

SSI units claiming SSI exemption Clubbing of clearance Inter-depended units - Hon ble Supreme Court in the case of CCE v. Modi Alkalies & Chemicals Ltd. laid down that clubbing of clearances has to be done when there is an interdependence. - interdependence are pervasive financial control and management control - this has to be seen from the facts and circumstances of each case Held that in this case before us that the revenue has not been able to prove that there was a pervasive financial or management control of all the units by one person. Mere financial accommodation in form of loans would not by itself be construed as pervasive financial control exercised by one company over other. In any case reasons given by the Adjudicating Authority after considering all the aspects and the records like balance sheet and other evidence produced before him seems to be uncontraverted by the revenue as they have not adduced any contrary evidence to these records which were produced before the Adjudicating Authority Clubbing of clearance is not allowed.

Issues Involved:
1. Clubbing of clearances for determining duty liability.
2. Financial interdependence and transactions among the units.
3. Use of brand names and common facilities.
4. Applicability of legal precedents and Board Circulars.

Detailed Analysis:

1. Clubbing of Clearances for Determining Duty Liability:
The central issue was whether the clearances made by M/s. Agarwal Rubber (P) Ltd. (ARPL) and its associate units should be clubbed together for determining the duty liability. The revenue argued that the units were financially interdependent and managed by the same family, which justified clubbing under the SSI exemption notifications. However, the adjudicating authority found that each unit had its own machinery, employees, and separate registrations under various statutory authorities. The units were not dummies of ARPL, and there was no evidence of profit sharing or flow back of funds among them. The Tribunal upheld this view, stating that the units maintained separate records and were independent legal entities.

2. Financial Interdependence and Transactions Among the Units:
The revenue highlighted financial transactions such as interest-free loans and outstanding amounts between ARPL and its associate units as evidence of financial interdependence. The adjudicating authority, however, noted that interest-free loans are common in business transactions and were properly reflected in the accounts. There was no evidence of funds flowing back to ARPL or profit sharing. The Tribunal agreed, citing that mere financial accommodation does not constitute pervasive financial control.

3. Use of Brand Names and Common Facilities:
The revenue argued that the use of the brand name "TM" by ARPL, which belonged to TMTTPL, and the low lease rent charged for shared premises indicated a common understanding and mutual interest. The adjudicating authority found that using a brand name for manufacturing and exporting did not imply mutual interest or dummy status. The lease agreements were legitimate commercial transactions, and the rent amount could not be a basis for clubbing clearances. The Tribunal upheld these findings, noting that the use of common facilities and brand names without profit sharing or financial flow back does not justify clubbing.

4. Applicability of Legal Precedents and Board Circulars:
The revenue cited several legal precedents to support their case for clubbing clearances. However, the Tribunal found that these cases were not applicable as the facts differed. The Tribunal relied on the Supreme Court's decisions in cases like Commissioner of Central Excise, New Delhi v. Superior Products and Commissioner of Central Excise, Jaipur v. Electro Mechanical Engg. Corpn., which emphasized the need for clear evidence of mutual interest and financial interdependence for clubbing clearances. The Tribunal also referred to the CBEC Circular No. 6/92, which stated that private limited companies are distinct entities and should not be clubbed unless there is clear evidence of control and financial interdependence.

Conclusion:
The Tribunal concluded that the revenue failed to provide sufficient evidence to prove that the units were not independent entities. The adjudicating authority's decision to drop the proceedings was upheld, and the appeals filed by the revenue were rejected. The Tribunal emphasized that financial transactions and shared facilities alone do not justify clubbing clearances without clear evidence of control and profit sharing. The legal principles and Board Circulars supported the view that each unit should be treated as a separate manufacturer for duty purposes.

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