2005 (4) TMI 171 - AT - Central Excise

Issues Involved:
1. Alleged dummy units for evading central excise duty.
2. Absence of machinery and manufacturing activity in the units.
3. Non-availability of individual power connections.
4. Intimation of closure of units.
5. Absence of stock of raw materials, finished goods, or waste.
6. Financial control and interdependence between units.
7. Managerial control over the units.

Detailed Analysis:

1. Alleged Dummy Units for Evading Central Excise Duty:
The Revenue alleged that M/s. Gilt Pack Ltd. created 22 dummy units (respondents no. 3 to 24) to evade central excise duty by showing that part of the bags cleared by them were manufactured by these units and availed SSI exemption. However, the tribunal found that no evidence was produced to establish that M/s. Gilt Pack Ltd. had financial control over these units. The units were private limited companies, and 13 of them existed before M/s. Gilt Pack Ltd. was established, indicating that they were not created by M/s. Gilt Pack Ltd. to avail SSI exemption.

2. Absence of Machinery and Manufacturing Activity in the Units:
During a surprise visit on 16-5-96, the preventive officers found no machinery or manufacturing activity in the 22 units. The respondents explained that the sheds required repair, and hence the machinery and records were moved. The tribunal accepted this explanation, noting that the Revenue did not dispute the need for repairs. The respondents also provided evidence of past manufacturing activities, including visits by central excise officers and audits, which the tribunal found credible.

3. Non-availability of Individual Power Connections:
The Revenue argued that the units did not have individual power connections, making it improbable for them to have conducted manufacturing activities. The respondents countered that their rent agreements included electricity charges, and they did not need separate power connections. The tribunal found this explanation plausible, especially since the stitching of HDPE bags required minimal power.

4. Intimation of Closure of Units:
The Revenue contended that there was no intimation of closure of the units. However, the respondents provided evidence that they had sent intimation letters along with RT-12 returns for the period ending 31-3-96. The tribunal found that the evidence supported the respondents' claim, and even if there was some confusion about the receipt of the intimation, it did not prove that the units were non-functional throughout the period in question.

5. Absence of Stock of Raw Materials, Finished Goods, or Waste:
The Revenue noted the absence of raw materials, finished goods, or waste in the units during the visit. The respondents explained that the materials were consumed, and the finished goods were cleared before vacating the sheds for repairs. The tribunal found this explanation reasonable and noted that the units had been audited and inspected regularly without any issues being raised previously.

6. Financial Control and Interdependence Between Units:
The Revenue claimed that there was financial control and interdependence between the units, as they borrowed money from each other or from the Kalani family. The tribunal found no evidence of financial control by M/s. Gilt Pack Ltd. over the units. The units were separate legal entities, and the borrowing of money did not establish financial control or interdependence.

7. Managerial Control Over the Units:
The Revenue argued that M/s. Gilt Pack Ltd. had managerial control over the units, as some workers of respondent no. 1 were working as authorized signatories in some units. The tribunal found no evidence of managerial control by M/s. Gilt Pack Ltd. over the units. The units operated independently, and the presence of some common workers did not establish managerial control.

Conclusion:
The tribunal concluded that the Revenue failed to establish that the 22 units were dummy units created by M/s. Gilt Pack Ltd. to evade central excise duty. There was no evidence of financial or managerial control by M/s. Gilt Pack Ltd. over the units. The tribunal upheld the Commissioner's order, rejecting the Revenue's appeals and finding no reason to club the clearances of the 22 units with those of M/s. Gilt Pack Ltd. for charging central excise duty.

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