2017 (7) TMI 336 - AT - Central Excise

SSI exemption - dummy units - Revenue entertained a view that Kores had floated many units in order to improperly avail small scale exemption - N/N. 8/2003-CE - Held that - The thrust of the Revenue s appeals against the findings of the Original Authority is revolving around the financial and managerial controls alleged to have been exercised by Kores on these small scale units - the notice issued to demand Central Excise duty should clearly identify the person from whom such duty is being demanded. There can be no demand invoking the concept of jointly and severally. The plea of the Revenue is that notices were issued to the dummy units in order to satisfy the principals of natural justice. In such case, the notices are to be restricted, if at all, only to penal proceedings as no duty can be demanded from such purported dummy units. The rural SSI units were engaged in packing of staple pins with Kores brand. This was evidenced even during the searches conducted by the officers, in two of the such units. The Original Authority also found that while the demand was raised against the rural units, no such demand was made from urban units in the proceedings. Appeal dismissed - decided against Revenue.

Issues Involved:
1. Clubbing of clearances from different SSI units for Central Excise duty.
2. Determination of whether the SSI units were dummies of Kores.
3. Financial and managerial control by Kores over SSI units.
4. Legality of demands raised jointly and severally.

Issue-Wise Detailed Analysis:

1. Clubbing of Clearances from Different SSI Units for Central Excise Duty:
The Revenue's appeals were based on the contention that Kores had created multiple SSI units to improperly avail small scale exemption by clubbing clearances from these units. The Original Authority, after examining the facts, concluded that the rural units were indeed involved in packing and labeling activities and were not dummies of Kores. The Tribunal had previously set aside similar demands, stating that the Department could not establish the legal provision under which the clubbing of turnover of various individual units could be done. The Tribunal reiterated that mere financial or administrative relationships do not justify clubbing under the Central Excise Act or the relevant notifications.

2. Determination of Whether the SSI Units Were Dummies of Kores:
The Revenue alleged that the SSI units were dummies created by Kores, as they were managed by ex-employees of Kores and had financial transactions with Kores. The Original Authority found no substantial evidence to prove that these units were under the control of Kores. The SSI units were registered as independent entities with various statutory authorities and maintained separate accounts and operations. The Tribunal upheld this finding, noting that the existence of independent legal entities cannot be disregarded merely due to some financial or administrative connections.

3. Financial and Managerial Control by Kores Over SSI Units:
The Revenue argued that Kores exercised financial and managerial control over the SSI units, citing the presence of ex-employees and relatives of Kores' directors in these units. The Original Authority dismissed these allegations, stating that the presence of ex-employees or relatives does not automatically imply control. The Authority noted that the SSI units had their own premises, labor, power connections, and maintained separate financial records. The Tribunal supported this view, emphasizing that the burden of proving financial and managerial control lies with the Revenue, which failed to provide concrete evidence.

4. Legality of Demands Raised Jointly and Severally:
The Revenue issued demands jointly and severally against Kores and the SSI units. The Tribunal observed that duty demands should clearly identify the liable entity and cannot be raised jointly and severally. The Tribunal noted that while notices to dummy units may be issued for penal proceedings, duty cannot be demanded from such units. The Original Authority concluded that the SSI units were independent entities, and no duty could be demanded from them on a joint and several basis.

Conclusion:
The Tribunal dismissed the Revenue's appeals, finding no merit in the arguments presented. The Tribunal upheld the findings of the Original Authority, which concluded that the SSI units were not dummies of Kores and were independent legal entities. The Tribunal reiterated that the Revenue failed to provide substantial evidence to justify the clubbing of clearances and the allegations of financial and managerial control by Kores. The appeals were dismissed, and the order of the Original Authority was affirmed.

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