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TMI Blog2013 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... for SSI exemption. Therefore this is not the case for total waiver and it is directed to the entity to deposit an amount within a period of eight weeks from the date of this order. - stay granted partly. - 91-93 of 2012 - - - Dated:- 26-6-2012 - Ajit Bharihoke And Rakesh Kumar, JJ. Appellants Rep by: Shri Suresh Aggarwal and Vivek Aggarwal, Advs. Respondent Rep by: Shri Nagesh Pathak, DR Per: Rakesh Kumar: The facts leading to filing of these appeals and stay applications are, in brief, as under. 1.1 M/s D S Doors (I) Ltd., 11/7, Mile Stone, Faridabad (hereinafter referred to as DSD) is a private limited company with Shri Dhan Singh Sharma, as its Managing Director and his wife and son - Mrs Kaushalya Jangir and Shri Kunal Jangir respectively, as its directors. It is engaged in the manufacture of various articles of wood such as doors, chowkhats and furniture items etc. chargeable to Central excise duty under Chapter 44 and 94 of the Central Excise Tariff. They avail SSI exemption under Notification No. 8/03-CE. 1.2 M/s D.S Woodtech Ltd., F-54, Ballabhgarh (hereinafter referred to as DSW) is also a private limited company with Shri Dhan Singh Sharma, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 2005-2006 and 2006-2007 indicated huge under reporting of production and sales. 1.6 Statement dated 23/4/10 of Shri D.P. Singh, General Manager, DSD indicated that though he was is the employment of DSD, he was handling the book of DSW also. 1.7 From the above investigation it appeared that DSD is the main company and DSW is a dummy unit, just a part of DSW and if their clearances are clubbed they would not be eligible for SSI exemption under Notification No. 8/03-CE. 1.8 In view of the above, a show cause notice dated 14/10/2010 was issued for - (a) clubbing the clearances of DSD with those of DSW during each year from 2005-2006 to 2009-2010 for determining the eligibility of DSW for SSI exemption and on this basis, recovery of short paid duty of Rs.3,30,81,801/-from DSD for 2005-2006 to 2009-2010 period under proviso to Section 11A (1) of Central Excise Act, 1944, alongwith interest on this duty under Section 11AB ibid; (b) imposition of penalty under Section 11AC ibid on DSD and DSW; and (c) imposition of penalty under Rule 26 of Central Excise Rules, 2002 on Shri D.S. Sharma and Shri Dinesh Jangir. 1.9 The above show cause notice was adjudicated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon in support of allegation of duty evasion against DSD, has not been allowed, that in any case, all the facts were known to the department and hence longer limitation period under proviso to Section 11A (1) cannot be invoked, that there is no evidence to show that DSW is a dummy unit or extension of DSD, that the impugned order is not sustainable, that the appellant have a strong prima facie case and pre-deposit of duty demand, interest and penalty would cause undue hardship, that DSD have no financial capacity to pre-deposit the duty demand, interest and penalty and that in view of this the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeals and recovery thereof may be stayed till the disposal of the appeals. 4. Shri Nagesh Pathak, the learned Senior Departmental Representative, opposed the stay applications and reiterating the findings of the Commissioner in the impugned order, pleaded that DSW is only an extension of DSD and it has no independent existence, that both the units are being controlled by Shri D.S. Sharma and are being run as one unit, that the goods manufactured in the premises of DSW were being clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clearance of DSW during each year from 2005-2006 to 2009-2010 during each year DSD would not be eligible for SSI exemption. It is also alleged that in terms of appraisal report of income tax department in respect of DSD and DSW of 2005-2006 and 2006-2007 on the basis of income disclosed during survey operation, during each of these years DSD and DSW had huge volume of unaccounted sales of excisable goods which had been cleared without payment of duty. 5.2 The evidence in support of the above allegations is, in brief, as under - (1) At the time of visit to the factory premises of DSW at F-54, Ballabhgarh, the officers found that there was no facility for polishing in the unit, there was no bill book/invoice book in the factory and Shri Joginder Singh Jangir, Foreman, in his statement dated 22/3/10 stated that only Shri D.S. Sharma can tell about the bill book/ invoice book and that he reports the status of production only to Shri D.S. Sharma. (2) Statement dated 22/3/10 of Shri Satish Pilania, Manager, DSW stating that the bills/invoice in respect of the finished goods cleared from DSW are issued from the factory premises of DSD, either from the bill book of DSW or f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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