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TMI Blog1997 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Hanut Industries for the purpose of arriving at the aggregate value of clearances of Rs. 2 crores provided under Notification 175/86, dated 1-3-1986. 2. The brief facts of the case are that the appellants herein are a registered Small Scale Unit engaged in the manufacture inter alia, of moulded HDPE and LDPE water tanks, which are marketed under the brand name Sinter Polycon . Another small scale unit viz. M/s. Baid Industrial Corporation also manufacture similar water storage tanks and markets them under the brand name of POLYCON. Both the units are partnership firms; they do not have any common partners; however, their partners are related to each other. The above appellant filed a classification list effective from 1-1-1990 classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri R. Parthasarathy, learned Consultant and Shri J.M. Sharma, DR. 5. The undisputed facts are that the two units are independent partnership firms with no common partners; each unit is situated at different location; each firm has its own premises, plant and machinery; each unit buys raw materials and manufactures water storage tanks independently. There is no unjust flow back or commonality in any area except that both the units purchase the plastic lids from the same supplier. There is no evidence that the appellants are a dummy unit of M/s. Baid Industrial Corporation. The brand names are not identical even though they can be said to be similar. However, the fact that the brand names are similar is not a ground for clubbing the cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of both the firms and investigations during which statements were recorded, the department issued the show cause notice and the Asstt. Collector clubbed the value of clearances of both the units for the purpose of computing the value limit under Notification 175/86 and held that since the maximum limit had been reached they managed production in another unit and Sinter Polycon is nothing but POLYCON. Since both the units are of brand name POLYCON and manufactured by the same manufacturers and the manufacturer of lids had given the address of Baid Indl. Corpn. in the invoices for supply of lids to Hanut Inds. and thus the latter had been treating themselves as separate manufacturer. 10. They had appealed against the same order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t make any difference. Further the two units are registered separately under the Factories Act and Sales Tax Act as SSI units and have separate L-4 licence, bank accounts and partnership deeds. The fact that partners of the two firms are related would at best only affect the assessable value if the appellants sold their products through Baid Industrial Corpn. but was not sufficient ground for clubbing the clearances. The appellants have filed copies of their L-4 licence, SSI registration certificate, sales tax registration certificate etc. to prove that they are separate unit. They would also like to rely upon the following case law : 1. Shakti Engg. Works - 1989 (40) E.L.T. 95 2. Shri Packaging Corpn. - 1987 (32) E.L.T. 94 3. Bhagwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l flow-back. Ld. DR is correct in mentioning that it is the totality of facts and circumstances, which has to be seen but then such an examination must bring out the fact that in all probability the so called two units were really one in terms of organisation, function or control and separate registration for sales tax, SSI or excise purposes etc. was merely a facade. The burden to prove the facts and circumstances lies on the department. 16. Once the two units had related partners and were situated in the same industrial area and marketing similar goods department could reasonably investigate the matter but the decision must be ultimately based on proof and that proof must pass atleast the test of preponderance of probability. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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