2019 (5) TMI 366 - AT - Central Excise

Area Based Exemption - extension of the unit or not - change of the ownership of the unit - benefit of N/N. 50/2003-CE dated 10.06.2003 - HELD THAT - It is a fact on record that M/s SMI has stopped their production and the registration was surrendered on 17.06.2004. It is also a fact on record that the respondent purchased the machinery from M/s SMI. Although 71% shares have been held by the proprietor of M/s SMI, that does not mean the proprietor of M/s SMI and the respondent are one and same thing. In fact, the respondent is a private limited company and a director and company are two separate legal entities; therefore, it cannot be said that the respondent is an extension of M/s SMI. Moreover, the respondent had applied to the Department of Industries and commencement of commercial production certificate has already been issued to them, which shows that the respondent is a new industrial unit and qualifies the conditions of the notification 50/2003-CE dt. 10.06.2003 to avail the benefit of exemption notification. Benefit of notification rightly allowed - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Eligibility for exemption under Notification No. 50/2003-CE dated 10.06.2003.
2. Definition and interpretation of "New Industrial Unit."
3. Validity of transactions between the respondent and M/s Super Music International (M/s SMI).
4. Lifting of the corporate veil to determine the true nature of the respondent's business setup.

Issue-wise Detailed Analysis:

1. Eligibility for Exemption under Notification No. 50/2003-CE dated 10.06.2003:
The Revenue appealed against the order allowing the respondent the benefit of exemption under Notification No. 50/2003-CE. The respondent had taken over land, building, and some machinery from M/s SMI and started manufacturing operations from 01.05.2004. The respondent also made significant investments in new and old machinery. The Revenue contended that since M/s SMI leased the factory building and machinery to the respondent and the management remained the same, no new unit was established, thus not qualifying for the exemption. However, the Tribunal found that the respondent had set up a new unit, as evidenced by the certificate of commercial production and substantial investments in plant and machinery, entitling them to the exemption.

2. Definition and Interpretation of "New Industrial Unit":
The term "New Industrial Unit" was not defined in the central excise law. The Revenue argued that the unit was not new since it was merely a continuation of M/s SMI under a different name. The Tribunal, however, noted that the respondent had obtained necessary certifications and had taken effective steps to set up a new unit after 07.01.2003. The Tribunal referred to the Central Capital Investment Subsidy Scheme, which defined a new industrial unit as one for which effective steps for setting up were not taken before 07.01.2003. The Tribunal concluded that the respondent met the criteria for a new industrial unit as they commenced commercial production after 07.01.2003.

3. Validity of Transactions between the Respondent and M/s SMI:
The Revenue alleged that the transactions between the respondent and M/s SMI were merely a change of control rather than the establishment of a new unit. The Tribunal found that the transactions were normal commercial transactions at arm's length. The sale of plant and machinery from M/s SMI to the respondent was done under proper invoices, and the respondent paid the taxes due. The Tribunal held that the transactions were valid and did not constitute an evasion of duty.

4. Lifting of the Corporate Veil:
The Revenue argued for lifting the corporate veil, suggesting that the respondent and M/s SMI were essentially the same entity due to the common management. The Tribunal, however, emphasized that a company is a separate legal entity from its shareholders and directors. The Tribunal found no substantial grounds or evidence to justify lifting the corporate veil. The transactions were legitimate, and the respondent was a distinct legal entity from M/s SMI.

Conclusion:
The Tribunal upheld the impugned order, allowing the respondent the benefit of exemption under Notification No. 50/2003-CE. The Tribunal dismissed the Revenue's appeal, affirming that the respondent had established a new industrial unit and complied with the necessary conditions for the exemption.