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TMI Blog2006 (3) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... separately claiming concessional rate of duty under Notification No. 7/97 dated 1-3-1997 for the year 1997-98. During the course of enquiry, it was found by the Central Excise department that the two units having common partners were operating from same premises, manufacturing the same goods, having common machinery and common partners. Further, M/s. BEPL was using the brand name/monogram/logo belonging to M/s. Britomatics Engineering Pvt. Ltd. Therefore, a show cause notice was issued to them starting that the two units were one and the same and they have got themselves registered separately in order to claim benefit under Notification No. 7/97, even though the machinery and the workers were common but misdeclared as belonging to each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same were operating from the same premises. Accordingly, Additional Commissioner demanded duty amounting to Rs. 9,04,088/- only from M/s. BEPL and Rs. 39,905.04 from M/s. Britomatics India in respect of the clearances made by them and a penalty of Rs. 9,04,088/- was imposed on M/s. Britomatics Engineering Pvt. Ltd. (BEPL) and Rs. 39,905.04 on M/s. Britomatics India under Section 11AC Penalty of Rs. 5,000/- was imposed on their officers and the plant machinery was also confiscated with an option to redeem the same on payment 4. The above order was upheld by the Commissioner (Appeals) though on a different grounds. The Commissioner (Appeals) held that both the units were one and the same with different names, operating from the same premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the same premises their clearance are liable to be clubbed in view of the provision of Notification 175/86 under which the aggregate clearance are to be determined by clubbing the clearances of one or more units operating from the same premises. The show cause notice was adjudicated by the Additional Commissioner who clearly admitted the existence of two separate units in the same premises but clubbed the clearances of two units in view of the provision of Notification No. 175/86. However, on appeal the Commissioner (Appeals) sustained the order on totally different grounds as he has clearly stated in his finding, "they cannot by any stretch of imagination be considered/construed as different or distinct legal entities and are only cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one paragraph of the findings in the order-in-original in which the Additional Commissioner has held as under: "1 also find that in view of the above facts, the negligence or deliberate intention to evade the Central Excise duty has been established and as such both the companies have rendered themselves liable to penal action under Section 11AC of Central Excise Act, 1944 and the interest is also recoverable on the amount of Central Excise duty evaded, under the provisions of Section 11AB of Central Excise Act, 1944" which words indicate that the adjudicating authority is not sure whether it was negligence or a deliberate intention and once the adjudicating authority himself holds that there was negligence then intention to evade duty cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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