2017 (5) TMI 1081 - AT - Central Excise

SSI exemption - clubbing of clearances - dummy units - N/N. 175/86-C.E. dated 1.3.86 - it was found that stock of raw materials and finished goods of these units were lying in the premises of other units - whether on the basis of the facts on record the two units could be deemed as one and the same entity? Held that - SSI Exemption is subject to conditions specified in it. One condition for this exemption notification is that where a manufacturer clears specified goods from one or more factories, the Exemption in his case shall apply for the total value of clearances mentioned against each of the serial numbers in the said table and not separately for each factory - Another condition of the Notification is that the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories during the preceding financial year does not exceed a particular threshold limit, as mentioned in the Notification. Raw materials belonging to these units were stored in common premises. It is seen that some of them were availing Modvat and when credit of inputs is taken such movement of goods is not permissible without proper documentation and/or permissions and without reversal of credit. Such free movement of inputs without following due procedure is not permissible in law - Similarly in case of finished goods and intermediates manufactured by them such movement was not permissible without payment of duty and without proper documentation. If any finished or intermediate goods manufactured out of duty paid goods are to be removed outside manufacturing premises the duty is required to be paid. In case the credit is taken, the same is required to be reversed. No such activity was being done and the manufactured goods being moved from premises to another is illegal unless the factory is one registrant. Simply, it is seen in the said case that there was no allegation of free usage of machine of other units. The decision of the Hon ble Supreme Court in the case of SUPREME WASHERS (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE 2002 (12) TMI 82 - SUPREME COURT OF INDIA applies where on similar issue it was held that there is mutuality of interest between the appellants. The reliance was placed by the Tribunal on facts like the three companies having common management under Shri S.L. Raheja, having common procurement of raw material having common stock accounting and planning, having interdependence in manufacturing operations, having common stock of raw materials and semi finished goods, having common use of machinery between the three units, having common marketing arrangements and free flow of finance between three units cumulatively indicates interdependence of the three units with each other as also inter-relationship, cumulatively establishes the appellants inter-relationship and interdependence with each other. Extended period of limitation - Held that - Failure to obtain due permissions amounts to suppression - the actual operations of movement of goods and material, use of common machines without any costs, common purchase and storing of raw material, common electricity and chilling plan, was not known to the revenue. Had it all been disclosed or permission needed for movement of goods between premises sought the revenue would have come to know of the facts - the extended period of limitation has rightly been involved. CENVAT credit - duty paying invoices - Held that - It is seen that there is prima facie case made by the appellants that the Commissioner has not dealt with the same in detail - It is seen that there is no in depth examination of these documents at the level of Commissioner - denial of credit is set aside and the matter remanded to the Commissioner for re-examination. Appeal disposed off - part matter decided against assessee and part matter on remand.

Summary

Issues Involved:
1. Clubbing of clearances and denial of small-scale exemption.
2. Imposition of penalties.
3. Entitlement to MODVAT credit on endorsed invoices.
4. Invocation of the extended period of limitation.

Detailed Analysis:

1. Clubbing of Clearances and Denial of Small-Scale Exemption:
The appeals were filed against the confirmation of demand by clubbing the clearances of M/s Mayur Printers, M/s Mayank Rotoplast Industries, Labhubhai Patel, M/s Vikas Agency, and M/s Stylopack. The units were found to be working in one compound with shared resources and machinery, leading to the denial of small-scale exemption under Notification No.1/93-Central Excise. The units shared common facilities such as administrative office, electric generating diesel engine, water supply and chilling plant, paper core cutting machine, weighment and packing of final products, and waste grinding machine. The Commissioner concluded that these shared facilities and the free movement of raw materials and finished goods without proper documentation indicated that the units were operating as a single entity. The Tribunal upheld the Commissioner’s decision, noting that the facts demonstrated operational integrity and mutuality among the units, thus justifying the clubbing of clearances.

2. Imposition of Penalties:
Penalties were imposed on Shri Labhubhai Patel, who was identified as the main person operating on behalf of the units. The appellants argued that the imposition of penalties on so-called dummy units indicated their independent existence. However, the Tribunal found that the shared facilities and machinery, along with the free movement of goods, supported the Commissioner’s finding that the units were essentially operating as one entity. Therefore, the imposition of penalties was upheld.

3. Entitlement to MODVAT Credit on Endorsed Invoices:
The appellants contended that they were entitled to MODVAT credit on certain endorsed invoices, which was denied by the Commissioner. The Tribunal noted that at the material time, credit was permitted on endorsed invoices. The appellants presented gate passes and invoices showing endorsements. The Tribunal found that the Commissioner had not examined these documents in detail and remanded the matter for re-examination, directing the Commissioner to consider the documents produced by the appellants.

4. Invocation of the Extended Period of Limitation:
The appellants argued against the invocation of the extended period of limitation, asserting that they were registered with the Central Excise authorities, filed classification lists, and their records were audited. However, the Tribunal found that the material facts, such as the free movement of raw materials and finished goods without documentation and the use of common machinery without compensation, were not disclosed to the Revenue. This amounted to suppression and misdeclaration of facts, justifying the invocation of the extended period of limitation. Consequently, the Tribunal upheld the confirmation of demand and imposition of penalties.

Conclusion:
The Tribunal dismissed the appeals concerning the confirmation of demand and imposition of penalties, finding that the units operated as a single entity and had suppressed material facts. However, the issue of MODVAT credit on endorsed invoices was remanded to the Commissioner for re-examination. The judgment was pronounced in the open court on 08.05.2017.