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TMI Blog2017 (5) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Tribunal at a belated stage. It is not the case on behalf of the assessee that those documents were not available and / or misplaced at the time of adjudication - Order In Original came to be passed in the year 2008. No such documents were produced till than and as observed herein above the same came to be produced for the first time before the learned Tribunal, which can be said to be an afterthought and to get out of the findings recorded by the authorities below that other units / firms were not having their independent, separate plant and machineries. Under the circumstances, the learned Tribunal has rightly rejected the Rectification Application. Penalties: - Held that: - no error has been committed in imposing the penalty upon Shri Babubhai Mistry, Director, and Smt. Jasuben Mistry, the proprietor - penalty amount was reduced. Appeal dismissed - decided against appellant. - TAX APPEAL NO. 294 of 2017, 295 of 2017, 296 of 2017 - - - Dated:- 3-5-2017 - MR. M.R. SHAH MR. B.N. KARIA JJ. Appearance: MR. PARITOSH GUPTA, LD ADV WITH MR PARESH M DAVE, ADVOCATE for the Appellant(s) No. 1 3 ORAL JUDGMENT (PER: MR. M.R. SHAH) 1.0. As commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were other firms M/s. Hitech Engineers and Fabricators (hereinafter referred to as M/s. Hitech ) the proprietor of which was one Shri Umeshbhai Mistry son of Shri Babubhai Mistry and M/s. Bhavani Engineering Works (hereinafter referred to as M/s. BEW ), of which, Shri Babubhai Mistry was proprietor and one M/s. Chamunda Engineering Private Limited, a Private Limited Company, incorporated under the Companies Act, 1956 (Smt. Jasuben B Mistry and Shri Babubhai M Mistry, were Directors). All the aforesaid firms were situated in three different sheds viz. Plot Nos. 79, 80 and 81, Mahalaxmi Industrial Estate, Vatva, Ahmedabad claimed to be engaged in the manufacture of the same product. That on 07.02.2005 the Preventive Officer of the Central Excise, AhmedabadI, visited the said premises. It was noticed that the aforesaid three firms and one company were operating from the same premises. It was further noticed that there was a common entrance and exist as well as common land, building, plant and machinery, raw material, electricity, telephone, fax, office, office equipments etc. The Officer recorded the statement of Shri Babubhai Mistry and Shri Umesh Mistry on different dates. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r firms having their separate plant and machinery. However, considering the fact that the documents which were placed before the Tribunal placed for the first time in the Rectification, were not even placed before the Commissioner (Appeals) and even before the lower authorities, the learned Tribunal rejected the said Rectification by observing that such evidence cannot be accepted before the Tribunal at belated stage. 3.5. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Tribunal in confirming the demand of duty and interest penalty upon the original assessee and in imposing the penalty and in confirming the penalty imposed upon Shri Babubhai Mistry and Smt. Jasuben Mistry (though reduced), the original assessee M/s CEW and Smt. Jasuben Mistry and Shri Baubhai Mistry have preferred present appeal with the aforesaid proposed question of law. 4.0. Heard Shri Paritosh Gupta, learned advocate for the appellants. 4.1. Shri Gupta, learned advocate for the appellantsoriginal assessee has vehemently submitted that the learned Tribunal has materially erred in confirming the demand of duty upon the assessee. 4.2. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities below that all the firms were / units were running in the same premises having a common entrance and exist. It has also been found that even one of the firm i.e. M/s. Hitech surrendered his registration under the Central Excise Act and was availed the benefit under the SSI exemption. That thereafter, having found that all other firms / units are dummy and therefore, the adjudicating authority confirmed the demand of duty on clubbing of the clearances value of of other units / firms (which were found to be dummy) with that of the assessee. The order passed by the authorities below cannot be said to be contrary to evidence on record and / or finding recorded by the authorities below cannot be said to be perverse and therefore, no interference of this Court is called for. 7.0. Now, so far as the submission on behalf of the appellant that the learned Tribunal has materially erred in rejecting the Rectification Application and in not considering the documents produced to show that plant and machineries were purchased by M/s. BEW and M/s CEPL, It is submitted that if those documents would have been considered, the learned Tribunal would not have even confirmed the demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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