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TMI Blog2009 (10) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 - S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J) Shri Prakash Shah, Advocate, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order per: B.S.V. Murthy, Member (T)]. - M/s. Navrang Art Printers (hereinafter referred to as NAP) situated at 108, 230, 231 and 233 Champaklal Industrial Estate, Sion (E/), Mumbai was registered with Central Excise Department since 19-7-1994 and engaged in manufacturing activity of various types of Printed Cartons (CETH 4819.19), Labels (CETH 4821.00) and other items falling under Chapter 48 of the Central Excise Tariff Act, 1985. Out of the above premises, from 11-3-1996, Range Superintendent was informed about discontinuation of manufacturing activity in premises No. 231. On 2-1-1998, activity was discontinued in premises No. 230 also and was intimated to the Department. 2. Department took up investigation and search was conducted, records were seized and based on the records, the enquiry and investigation conducted as the follow up action, show cause notice was issued and the impugned order has been passed. As a result of investigation, it was revealed that (a) NAP had evaded Central Excise duty by mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two units were considered to be dummy units, separate show cause notices should have been issued. Further, he also submits that subsequent issue of corrigendum to the other two parties was also illegal. (vi) He also submits that in the show cause notice, the specific clause under Rule 173Q under which penalty was proposed were not mentioned. In the Order-in-Original also penalty has been imposed under Rule 173Q without specifying the sub-clause. He relied on the decision of the Hon'ble Supreme Court in the case of Amrit Foods v. Commissioner of Central Excise reported in 2005 (190) E.L.T. 433, (S.C.), wherein it was held that if the show cause notice or the orders of Commissioner do not specify which particular clause of Rule 173Q of Central Excise Rules, 1944 had been allegedly contravened, penalty is not to be upheld. (vii) Further, he also relied on the decision of the Hon'ble Bombay High Court in the case of Commissioner of Customs (EP) v. Jupiter Exports reported in 2007 (213) E.L.T. 641 (Bom.) in support of his contention that if once penalty is imposed on the firm a separate penalty cannot be imposed on the partners. (viii) Further, he drew our attention to Annexure D1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant. He also submits that the fact that other two units were not in existence is also proved by the fact that all the four firms were declared to Central Excise department as manufacturing premises by NAP whereas other two units were claimed to be functioning and manufacturing unit and two of the units already registered in the name of NAP. This clearly proves the fact that other two units did not have any manufacturing premises with the others. As regards the submission of the learned Advocate that the department has accepted that other two units were also engaged in the manufacturing by treating them as job workers, as this was only an observation requiring job charges and further it does not affect the department stand that except the NAP unit others were dummy units. It was not the contention of the department that other two units have done job work. Therefore, he also submits that claim for cum-duty benefit has rightly been disallowed by the Commissioner in view of the fact that it is not the claim of the appellant that the value included in the duty element. 6. We have considered the submissions made by both sides. 7.1 It is the submission of the appellants that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate vail and treating all the units as one and the same. 7.3 Another contention was made that show cause notice should have been issued to the other two units and subsequent issue of corrigendum to the other two parties was also illegal. We do not find any justification for this contention. No demand has been confirmed against the other two units and there is no time limit for proposing penalty. In any case as already mentioned above this is a fit case for lifting the corporate vail and once this is done, what we are left with are two partners and their wives. Wives were only silent observers in the activities of husbands. Therefore the issue of corrigendum to the other two units fulfils the requirement of observance of principles of natural justice which is nothing but giving an opportunity to the person to defend himself or herself against the charge made. 7.4 The learned advocate relied upon the decision in the case of Eelectro Mechanical Engineering Corporation reported in 2008 (229) E.L.T. 321 (S.C.). In this judgment Hon'ble Supreme Court observed as follows : "10. The case of the Department is that these firms have been clubbed together as certain employees of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no penalty can be imposed on the partners of NAP fails and the decision of Hon'ble Bombay High Court does not help the case of the appellants. 7.9 We find that the contention of the learned advocate regarding six invoices found to be duplicated valid. It was his contention that in the absence of evidence to show that supplies were actually made twice, the same invoices could not have been added twice for working out the turnover. He submitted that there was a mistake at the time of preparing invoices and there was only one supply in respect of each invoice. He also submitted that this could have been easily verified. We find that in the absence of clear-cut evidence to show that supplies were also made twice which could have been easily verified, this contention will have to be examined again. 7.10 Another valid point made by the learned advocate was that the amount received by the appellants should have been treated as cum-duty value and claim for Modvat credit on the inputs utilized was to be considered. He submits that the claim for Modvat credit has been rejected on the ground that invoices were not produced but stated that invoices were actually produced. 8. As per the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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