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TMI Blog2013 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... team of Central Excise Officers of Agra visited the factory of M/s R.R. Foundry, Agra on 5.8.95. The officers, at the time of taking round in the factory premises of the Respondent No. 1 observed certain doors interconnected with an adjacent unit working in the name and style of M/s Sharad Industries, Agra. It was reported that the Proprietor of the Respondent No. 1 is Mr. Avdesh Kumar Gupta and the Proprietor of the Respondent No. 2 is Smt. Kamlesh Gupta W/o Shri Avdesh Kumar Gupta. The officers during the course of investigation observed the following points:- (a) M/s R.R. Iron Foundry and M/s Sharad Industries had common office, situated at the factory premises of Appellant No. 1 in order to have better control, (b) the records of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal dated 31.10.2000 by confirming the demand of Rs. 9,32,114/- & penalty of Rs. 9,32,114/- & Rs. 25,000/- upon the Respondent No.1 on the following ground:- the two firms are owned by husband and wife and general Power of Attorney is with the husband to run the business which is in wife's name and the products are with the Brand name which is admittedly belonging to their family therefore prima-facie it appears that the benefit of both the units is accruing to the same set of persons constituting a family. Merely because they are having separate records for the requirement of Trade Tex Act etc, the two cannot be considered separate. The acid test in such case is recipient of the benefit. Unless the wife or husband are professional and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 175/86. At the time when the family agreement was drawn neither R.R. Iron Foundry nor M/s Sharad Industries could dream that they will face some trouble on account of the Brand name R.R.I.F. which was owned and was being used by both the units, 5. Validity of such an agreement come up for consideration before the Hon'ble CEGAT, New Delhi in the case of Bentex Motors Central Industries Vs Collector, Central Excise, New Delhi 2002(139) ELT-679(Tri-New Delhi). The double member bench ruled that as per agreement deed all the Partner are eligible to use the Brand name as it would belong to them, 6. Some of the additional case laws in support of our contention that the production of the two unit M/s R.R. Iron Foundry and M/s Sharad Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered separately from the very inception, with the Income Tax Authority, Sales Tax Authority & other statutory bodies and there is no proof of flow back on money from one firm to another. Further, the Brand RRIF is neither registered in the name of Appellant No 1 nor Appellant No. 2. Both can be used it as per agreement executed. Also this is not a case of use of Brand name by another person. Thus, I hold that the firms Appellant No.1 and No.2 could not be treated as one unit for clubbing their clearances for the purpose of payment of duty. Moreover, I also observe that in the Show Cause Notice it has been nowhere alleged and identified that which of the two firms was a dummy or a firm, which only existed on papers and not in realit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kumar Gupta, the proprietor of other unit, to look after the entire work of production, sale, purchase, handling of bank account etc. amount to and is indicative of the commonness of the both the units. Revenue has also referred to and relied upon the some decisions of the Tribunal. 6. We, after appreciating the submissions of both the sides find that there is not much dispute on factual position. It is not the Revenues case that two unit owned by Smt Kamlesh Gupta and her husband Shri Avdesh Kumar Gupta not complete units having all the necessary machines and infrastructure for manufacture of their final product. Both the units have separate Sale Tax Registration, Industries Registration, Income Tax Registration, Electricity Connection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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