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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 ..... e with effect from 21-3-1997. Both have filed separate ground plans which were duly approved by the Jurisdictional Superintendent. They have filed classification declaration under Rule 173B of Central Excise Rules, 1944 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because one unit was a dummy unit but because of the fact that the two units were operating from the same premises and in view of provision of Notification 16/97, separate exemption cannot be claimed by both the units if the 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 pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cause Notice it is first alleged that the two units are one and the same having common machinery, common workers, common goods etc. but in the same breath it is again stated that even if the two units are separately existing 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 Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of the common machinery, common premises, common goods as earlier a show cause notice was issued on the same grounds, the present show cause notice is clearly time-barred. Besides that attention was invited to the last 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the same uncertainty creeps in the order of the adjudicating authority wherein in the same breath he has held that there was negligence or deliberate intention to evade Central Excise duty. He, himself has therefore, held that it was not account of deliberate intention to evade duty and therefore the penal provision Section 11AC do not get attracted. Besides that is the fact that the department was aware of the common use of machinery, premises, brand name etc. as a show cause notice was earlier issued to both the appellants on the very same grounds. 10. In view of above, we allow the appeals and set aside the order of the lower authorities both on merits as well as on limitation. (Pronounced in Court) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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