9911796707
TMI Blog2010 (7) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... to deny the benefit of Not No. 8/2003 C.E. dated 1-3-2003 as amended and demanding the duty of Rs. 12,80,957/- along with interest and with penal provisions. It was also proposed to confiscate the seized goods and proposing to penalize the Managing Partner Shri Jagannath Shenoi. The adjudicating authority vide the impugned order denied the benefit of SSI exemption and confirmed the demand of Rs. 12,80,957/- along with interest, imposed penalty of Rs. 12,80,957/- under Section 11AC. The goods were confiscated and ordered for redeem on payment of redemption fine of Rs. 50,000/-. A personal penalty of Rs. 1,00,000/- was imposed on Shri M. Jagannath Shenoi under Rule 26 of CER, 2002. 3. Aggrieved by such an order, the assessee company filed an appeal before learned Commissioner (Appeals). Learned Commissioner (Appeals) after considering the submissions made by both sides before him came to the conclusion that the order-in-original that confirmed the demand and imposed penalties is not proper and hence he set aside the same. Aggrieved by such an order, the revenue is in appeal before us. 4. Learned DR assails the impugned order-in-appeal on two grounds. It is his submission that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at though the partners of both the units are same it cannot be said that both the units are interconnected undertakings for the purpose of claiming exemption under Notification No. 8/2003. As regards the use of brand name, it is his submission that the wordings used and the pictorial representation of Lord Ganesh are totally different than what has been done on Mangalore Ganesh Beedi Works packs. He would submit that the CBEC Circular No. 509/05/2000-CX., dated 18th January 2000 will be applicable in this case. He would also submit that the Circular No. 71/71/94-CX., dated 27-10-1994 would also be applicable. He would submit that there is no allegation or finding that there was financial flow back between the two companies and it is his submission that both the units have independent existence and separate capital, labour, factory and geographically apart and are registered with the authorities who enforce different Acts like Factories Act, Labour Act, Sales Tax and Income Tax and hence there can not be any clubbing of the clearances. He would also rely upon the following decisions for the proposition that the use of a name for easy identification can also be held as a house mark a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other firm. Unless such is the case a partnership firm is to be considered separate and distinct from partners constituting the firm. A very large body of pronouncements of higher judicial authority confirms this position. I particularly place reliance on Honorable Supreme Court's decision in the case of AC, C.E. & Cus. v. J. C. Shah as reported in 1978 (2) E.L.T. J 317 (S.C.) and Collector v. Jagjivandas & Co. as reported in 1989 (44) E.L.T. A24 (S.C.). For purpose of clubbing the primary requirement is to show that either of the firms own or control the other by ownership and consequent control over decision making role or there is financial dealing between them which are not on principal to principal basis and which are not at arms length. This is not established. Adjudicating authority has gone by the assumption that in a partnership firm partners constituting the firm are not separate from the firms. This is contrary to the settled law and cannot be the basis for clubbing in the absence of critical ingredients as discussed above. For the above findings I place reliance on decisions in following cases. GD Industrial Engineers, Faridabad v. C.C. & C.E., Chandigarh [1983 (14) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. In the instant case, we find that the issue is regarding clubbing of the clearances for the purpose of availing benefit of a Notification. Clauses of Notification No. 8/2003 do not envisage any such clubbing of the clearances, on the basis of the allegation that both the companies are interconnected undertakings. As we have already recorded that there is no evidence to show that both are interconnected but for the partners being the same, the findings of Commissioner (Appeals) are correct. We also find that there are no evidences to indicate any financial flow back and both the units are located in different geographical locations and are having different registrations with various authorities. There cannot be a denial of SSI benefit based on the findings that both the Units have common partners. In view of this the appeal filed by the revenue on this point is devoid of any merits and hence the same is dismissed and the impugned order to the extent it holds that there cannot be any clubbing or clearances between Mangalore Ganesh Beedi Works and the respondent is upheld. 8. As regards the denial of SSI exemption based on the allegation that they are using the brand name belong ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
