2019 (4) TMI 173 - AT - Central Excise

SSI Exemption - clubbing of clearances - units that all are controlled by one family member - dummy units - Held that - The allegation of the Revenue is that all three units are partnership firm and having common partners. That cannot be the sole ground to club the clearances of all the units. Moreover, M/s. Sonex Decor Pvt.Ltd., is a private limited company is a separate firm with its Directors, therefore, the same cannot be the ground to club the clearances of all the units - Moreover, M/s. Sonex Decor Pvt.Ltd., is a private limited company is a separate firm with its Directors, therefore, the same cannot be the ground to club the clearances of all the units. Other reason for clubbing of clearances of all the units are having financial flow back, mutual lending and borrowing etc. amongst the units; collection of sale proceeds on behalf of each other; joint control exercised by Shri Harvinder Singh and Shri Jaspal Singh on all the four units; common managerial control; partners/directors being members of the same family; and common use of facilities of telephone, fax, computer, office equipment, staff etc - We take note of the fact that all the units located at different locations having separate income-tax, sales tax, central excise registration. All units are having electricity connection, their own machinery and plant to manufacture their final products and maintaining their separate records such as manufacturing, purchasing, sale etc. The appellants are having bank accounts separately. There are some instances where some payments have been received by another person on behalf of the other but the same has been transferred to their respective account and during the course of their business if they have taken any money from the other company the same has been repaid. These facts have been recorded in the impugned order. Similar issue was examined by Hon ble Supreme Court in the case of Rollatainers Limited vs. CCE, Delhi-III 2004 (7) TMI 92 - SUPREME COURT OF INDIA , where it was held that clearances of two factories within the same premises, same owner and common balance sheet with common boundaries but having separate staff, separate management, separate passage, separate entrance with separate central excise registration and producing different end products, cannot be clubbed together. Thus, the clearances of all the units cannot be clubbed together - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Clubbing of clearances.
2. Denial of SSI exemption.
3. Imposition of duty, interest, and penalties.
4. Allegations of financial flow back and mutual lending.
5. Common managerial control and shared resources.
6. Validity of demand under extended period of limitation.

Detailed Analysis:

1. Clubbing of Clearances:
The primary issue was whether the clearances of the appellant units should be clubbed with those of M/s. M.G. Industries. The adjudicating authority held that due to financial flow back, mutual lending and borrowing, joint control, common managerial control, and shared resources, the clearances of all units should be clubbed. However, it was noted that all units were independently registered with separate income tax, sales tax, and central excise registrations, had their own machinery, and maintained separate records. The Tribunal referenced the Supreme Court's decision in Rollatainers Limited vs. CCE, Delhi-III, where it was held that clearances of separate units with distinct registrations and operations could not be clubbed solely based on common ownership or management.

2. Denial of SSI Exemption:
The SSI exemption under Notification No. 8/03-CE dated 1.3.2003 was denied on the grounds that the units were not independent. The Tribunal found that the units were independently operating with separate registrations and facilities, and there was no substantial evidence to prove that they were dummy units. The Tribunal cited several precedents, including Dirba Pipes Pvt. Ltd. and Nova Industries Pvt. Ltd., where it was established that units with separate registrations and operations should be treated independently for SSI exemption purposes.

3. Imposition of Duty, Interest, and Penalties:
The adjudicating authority imposed duty, interest, and penalties on the appellants based on the clubbing of clearances. The Tribunal found this imposition contrary to law, as the units were independent entities. It was emphasized that penalties under Rule 173Q read with Section 11A and 38 of the Central Excise Act, 1944, and Rule 25 of the Central Excise Rules were inappropriate since the units were treated as separate manufacturers by the department itself.

4. Allegations of Financial Flow Back and Mutual Lending:
The adjudicating authority cited financial transactions among the units as a basis for clubbing clearances. The Tribunal noted that these transactions were duly recorded in the books of accounts and were part of normal business operations. Temporary financial accommodations, duly reflected and returned, could not justify the denial of statutory benefits like SSI exemption.

5. Common Managerial Control and Shared Resources:
The adjudicating authority pointed to common managerial control and shared resources as reasons for clubbing. The Tribunal found that common management or shared resources, such as telephone and fax, did not suffice to club clearances, especially when units maintained separate operational and financial records. The Tribunal referenced several cases, including Alpha Toyo Ltd. and Renu Tandon vs. Union of India, where similar arguments were rejected.

6. Validity of Demand Under Extended Period of Limitation:
The Tribunal found that the majority of the duty demand was barred by limitation. It was noted that the appellants were enjoying SSI exemption in their own right and were independent units. There was no justification for alleging suppression or misstatement, and any demand beyond one year was barred by limitation.

Conclusion:
The Tribunal concluded that the clearances of the units could not be clubbed, and the denial of SSI exemption was unjustified. The imposition of duty, interest, and penalties was set aside, and the appeals were allowed with consequential relief. The Tribunal emphasized the importance of treating independently registered and operated units as separate entities, even if they had common ownership or management.