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2020 (2) TMI 136 - AT - Central ExciseSSI exemption - clubbing of clearances - dummy unit or not - mutual financial dependence over other unit or not - HELD THAT - The Department has failed to discharge its burden for proving the financial dependence of M/s.Siddharth Plastoware upon the appellant. They have also failed to prove the final product of two of the units to be common. Thus, M/s.Siddharth Plastoware is wrongly confirmed to be the dummy of the appellant by the adjudicating authority below. Resultantly, the clubbing of clearances of two is not sustainable. There is no denial of the Department that individually their clearances are less than 1.5 Crores. Benefit of S.S.I. Exemption, therefore, cannot be denied to them - Otherwise also both the industries fall within the rural area, as is apparent from address that they lie in Khasra No.29 30. Penalty - HELD THAT - Since demand in question is held unsustainable and that the confirmation thereof has been set aside, there can be no sustainability of the penalty upon Shri Harphool Singh Jhuria the appellant. The amount of ₹ 25 Lakhs as was debited from the appellant s account due to en-cashing of one of the three cheques issued by the appellant has therefore, to be refunded back to the appellant. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Clubbing of clearances of two manufacturing units. 2. Compliance with Section 9D of the Central Excise Act, 1944. 3. Rejection of refund claim. 4. Imposition of penalty. Issue-wise Detailed Analysis: 1. Clubbing of Clearances of Two Manufacturing Units: The primary issue was whether the clearances of M/s. Sona Plastics Udyog and M/s. Siddharth Plastoware could be clubbed. The Department argued that both units operated from the same premises, shared common resources (electricity, staff, office, and storage), and had a common authorized signatory, thus constituting a single entity. However, the appellant contended that both units had separate registrations, distinct proprietors, different products, and separate financial operations. The Tribunal observed that no show cause notice (SCN) was issued to M/s. Siddharth Plastoware, which is essential for clubbing clearances. Citing precedents, the Tribunal held that clubbing is unsustainable without an SCN to the alleged dummy unit. Furthermore, the Tribunal noted that both units were independently registered, existed at different times, and manufactured different products using different raw materials and machinery. The Tribunal concluded that the Department failed to prove mutual financial dependence or interconnection between the units, thus rejecting the clubbing of clearances. 2. Compliance with Section 9D of the Central Excise Act, 1944: The appellant argued that the show cause notice should be set aside due to non-compliance with Section 9D, which mandates certain procedural requirements. However, the Tribunal did not delve deeply into this argument, focusing instead on the substantive issues of clubbing clearances and the merits of the case. 3. Rejection of Refund Claim: The appellant sought a refund of ?25 Lakhs, which was debited by the Department by encashing one of the three cheques issued by the appellant. The Tribunal held that since the demand itself was unsustainable, the rejection of the refund claim was also incorrect. Consequently, the Tribunal ordered the refund of ?25 Lakhs to the appellant. 4. Imposition of Penalty: The Tribunal noted that since the demand was held unsustainable, the penalty imposed on Shri Harphool Singh Jhuria (the appellant in appeal No. 50536) was also unsustainable. The Tribunal set aside the penalty, reinforcing that penalties cannot stand if the underlying demand is invalid. Conclusion: The Tribunal set aside the orders under challenge, holding that the Department's conclusions were incorrect. Both appeals were allowed, and the Tribunal ordered the refund of ?25 Lakhs to the appellant. The decision emphasized the importance of issuing SCNs to all involved entities and proving financial interdependence before clubbing clearances. The Tribunal's findings were based on the distinct and independent existence of the two manufacturing units, separate financial operations, and different products manufactured.
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