2018 (3) TMI 253 - AT - Central Excise

100% EOU - Scope of SCN - main defence put forward by the ld. counsel is that no separate SCN has been issued to the alleged dummy unit and therefore the same vitiates the entire proceedings - Held that - the demand cannot sustain as the department has not issued SCN to the alleged dummy unit proposing to club the clearances of the same with the appellant herein - even the copy of the Order-in-Original has not been served upon the alleged dummy unit - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Whether the clubbing of clearances of two separate entities for denial of SSI exemption benefit is valid without a separate show cause notice to the alleged dummy unit.
2. Whether the failure to issue a show cause notice to the alleged dummy unit vitiates the entire proceedings.

Detailed Analysis:
Issue 1:
The appeals involved in this case arise from the same impugned order, where the appellant, a Proprietrix firm engaged in manufacturing spares/parts for heavy equipment, was availing the benefit of SSI exemption. The issue revolved around the department's proposal to club the clearances of another partnership firm, alleged to be a dummy unit, with the appellant's clearances to deny the SSI exemption benefit. The appellant contended that since no separate show cause notice was issued to the alleged dummy unit, the proceedings were flawed. The Commissioner (Appeals) upheld the decision based on the premise that all clearances were made by the appellant, even though the alleged dummy unit was not directly notified. The appellant argued that separate show cause notices should have been issued to the alleged dummy unit, citing relevant legal precedents like Unitech Containers P. Ltd., Sapna Engineering, and Diamond Scaffolding.

Issue 2:
The crux of the defense put forward by the appellant was the absence of a separate show cause notice to the alleged dummy unit, which, according to legal arguments, tainted the entire proceedings. The department contended that there was sufficient evidence to establish that the alleged dummy unit was non-existent and merely a facade for the appellant to avail the SSI exemption. The lower authorities supported this view, asserting that no separate notice was required for the alleged dummy unit. However, the appellant relied on legal authorities such as the decision in Diamond Scaffolding by the Hon'ble High Court of Calcutta and the Tribunal's ruling in the case of Ambi Plywood, emphasizing the importance of issuing a show cause notice to all relevant parties. Ultimately, the Tribunal found merit in the appellant's argument, citing previous judgments, and concluded that the absence of a show cause notice to the alleged dummy unit rendered the proceedings unsustainable.

In conclusion, the Tribunal set aside the impugned order, allowing the appeals on technical grounds due to the failure to issue a show cause notice to the alleged dummy unit. The demand for denial of SSI exemption benefit was deemed unsustainable, and the appeals were allowed with consequential relief.