2012 (11) TMI 861 - AT - Central Excise

Clubbing the clearances of the units - SSI exemption - Held that - One a proprietary unit and other a partnership unit cannot be clubbed unless it is shown that the work of one factory was being done in the another factory - both the factories were complete units and were capable of manufacturing goods independently - duty cannot be confirmed against the two assessees without arriving at a finding against whom the same is required to be confirmed - both the units cannot be held to be liable for duty demand - Commissioner is required to make his mind as against which unit the duty is required to be confirmed - order set aside and matter remanded to the Commissioner for de novo adjudication

Summary

Issues:
1. Clubbing of clearances of two units for duty calculation.
2. Applicability of SSI exemption independently to two units.
3. Treatment of clearances between units as captive consumption.
4. Time bar for calculation of duty.
5. Suppression leading to invocation of a longer period for demand confirmation.
6. Requirement for Commissioner to specify against which unit duty is confirmed.

Analysis:
The case involved the clubbing of clearances of two units, M/s. Chemicos and M/s. Mascoot Chemicals, for duty calculation. The Commissioner confirmed duty against both units jointly for the financial years 2000-2001 to 2003-2004. The appellant argued that prior to 1-1-2001, the units were proprietary units of the same manufacturer and should only be clubbed till that date. The appellant also claimed SSI exemption independently for both units. Additionally, the appellant contended that clearances between the units should be treated as captive consumption if considered as one unit.

The Departmental Representative (DR) countered that the units were not considered as one unit, but clearances were to be clubbed for SSI exemption purposes. The DR clarified that clearances between the units cannot be considered as captively consumed since they left the factory premises. The appellant agreed that the units were independent before 1-1-2001 but argued for clubbing based on the Notification. Regarding limitation, the appellant disputed the reasoning for invoking a longer period due to non-registration of M/s. Mascoot Chemicals.

The Tribunal emphasized that duty cannot be confirmed against both units without specifying against which unit the duty is confirmed. The Commissioner was directed to conduct de novo adjudication to determine against which unit the duty should be confirmed. The appellant was granted an opportunity to present their case, and the Commissioner was instructed to address each aspect independently. The stay petitions and appeals were disposed of accordingly.