9911796707
TMI Blog2000 (3) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon Order. 2. Briefly stated the facts are that M/s Ethos Engineers (Ahd) PVT. Ltd. manufacture air cooling coil and coil unit falling under Heading 84.15 of the Schedule to the Central Excise Tariff Act and claim exemption under Notification No. 75/87, dated 1-3-1987. A show cause notice dated 22-8-1990 was issued for demanding Central Excise Duty and for imposing penalty on the ground that they had created another unit, namely, M/s Excel Industries within their factory premises intentionally and deliberately with an intent to avail unwarranted concessional slab rate of duty under Notification No. 75/87 and Notification No. 44/88-C.E., dated 1-3-1988. The collector, under the impugned Order dated 16-4-1991, confirmed a demand of exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection on the grounds of having common directors and partners or manufacturing same products; that though the notice was issued to them on 22-8-90, the L 4 licence continued to be in force up to 1996 and both the entities were assessed separately for the purpose of excise duty, income tax and sales tax; that there is no allegation that L 4 licence was obtained by fraud. He relied upon the decision in A. Rathinam, Prop.Michael Match Works v. C.C.E., 1992 (60) E.L.T. 451 (T) wherein it was held that " The fact of the units being located in one compound is no reason to deny the benefit, so long as each was a different unit and having separate licence and separate business". The Tribunal also held that "The Department has not disputed about eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial help was given to them by the Appellants No. I, that not a single transaction has been brought on record either in the notice or in the impugned Order. Reliance was placed on the decisions in Jag Jivandas & Co. v. CCE - 1985 (19) E.L.T. 441 (Tribunal) and Shree Packaging Corporation v. CCE - 1987 (32) E.L.T. 94 (Tribunal). 4. The learned Senior Counsel also contended that the demand is time barred as show cause notice has been issued on 22-8-90 for demanding duty for the period from 1987-88 and 1988-89; that there was only general allegation of fraud and suppression in the show cause notice; that there was no specific instance of fraud and suppression mentioned in the show cause notice; that the language of the proviso to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is evident from the statements of the workers that the product was finally manufactured only by M/s. Ethos Engineers. He drew our attention to the statement of Shri C.N. Bhatt in which he had deposed that no monetary transaction had taken place with regard to the payment of electricity charges in between Ethos Engineers and Excel Industries. The learned SDR emphasised that financial interest may be visible as well as invisible in terms of rendering services etc. He relied upon the decision in the case of Best Systems (P) Ltd. v. CCE., Bangalore, 1997 (91) E.L.T. 175 (Tri.) = 1997 (68) ECR 664 (Tribunal) wherein it was held that Department is not expected to discharge the burden of proof by mathematical precision. The Tribunal held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) E.L.T. 1009. 6. In reply learned Sr. Counsel submitted that both the Appellants in the present appeal have separate machineries which is mentioned in the show-cause notice itself; that there is no allegation also by the Department that the machinery was shifted from the premises of Appellant No. 1 to the premises of Appellant No. 2; that the Supreme Court has granted stay recovery of demand in the case of J.N. Marshall PVT Ltd as reported in 1999 (1010) E.L.T. (A 137); that there is no finding in the present matter that the order placed on one unit was passed on to the other unit; that there is no financial interdependence. 7. We have considered the submissions of both the sides. The Commissioner has clubbed the clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere paid in respect of the goods manufactured by one unit and sent to other units for carrying out further processing and the finances of one unit was used by the other unit. The Tribunal took the cumulative effect of these circumstances to arrive at the finding that the three units were one and the same. Similarly in Universal Precision Tools, supra, the machinery meant for second unit was installed at the premises of the Appellants therein which is not so in the present matters. The show cause notice itself mentions the machinery installed in the premises of both the Appellants separately. Further, the Department has not controverted the submissions of the Appellants that no machinery was shifted from the premises of Appellant No. 1 when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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