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TMI Blog2018 (6) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of M/s Universal Engineers & Traders - It is evident from the facts that M/s Kailash Industries was set up in 1993–94 whereas the appellant M/s Universal Engineers & Traders had been set up during the period 2001–04, when they started manufacturing and were registered with the Central Excise Department. Further, I find that the clubbing of turnover of M/s Kailash Industries was also bad as M/s Kailash Industries was not to put to notice as to why their turnover should not be added to the turnover of the appellant – M/s Universal Engineers & Traders. Benefit under N/N. 83/94–CE - denial on the ground that the declaration was not filed - Held that:- The appellant unit is also entitled to the benefit of exemption Notification No. 83/94–CE, as amended as they have fabricated the panel boxes on job work basis for M/s Kailash Industries and the said items is specified for SSI industry. Only for reason they have not filed declaration by Kailash Industries, their exemption cannot be denied. Penalty under Rule 26 on M/s Kailash Industries - Held that:- The order of penalty is ab-initio void, as Shri K. C. Gupta-Proprietor had died before passing of the Adjudication Order. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out by M/s Universal Engineers Traders, situated at the same premises. He further informed that Shri Sumit Gupta is Proprietor of M/s Universal Engineers Traders, Shri Ashish Gupta - Director of M/s Nishant Weldtech India Pvt. Ltd. (earlier known as M/s Nishant Industries). Some records are resumed/found from the factory premises of M/s Universal Engineers Traders vide Panchnama dated 24/07/2013. Statement of Shri Sumit Gupta - Proprietor of M/s Universal Engineers Traders, was also recorded on the spot, who inter-alia stated that his unit M/s Universal Engineers Traders started fabrication of machinery components and manufacturing of Control Panels since 1987. Their major raw materials are H. R. Sheet, HR/ CR Plates Sheets, Electrical Switchgear, Welding Electrodes, etc. They are also doing job work of fitting and assembling for M/s Kathuria Roll Mill Pvt. Ltd., Ghaziabad. After doing the required job work, return the goods on Challan along with copy of the job work challan, they send the goods on Challan of the supplier of materials. Further, they are sending their semi-finished goods for machining and powder coating outside mainly to M/s Bayant Powder Coater, Ghaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing plant/facility at E 68 B. S. Road Industrial Area, Ghaziabad for manufacturing of Electric Panel/Bus Bars. 5. Similarly statement of Shri Yogender Chhabra, Authorized Signatory of M/s Chhabra Electric Co., Ghaziabad was recorded on 08/10/2013, also gave similar statement. Statement of Shri Vijay Kumar Aggarwal, Senior Excise Officer Authorized Signatory of M/s Hilite Industries, Ghaziabad was recorded on 08/10/2013, wherein he inter-alia stated that their company is engaged in manufacturing of Gasket Jointing Sheets and is procuring Electrical Panels, etc. from M/s Kailash Industries. In case they want some parts like Switch/MCB, etc. to be fitted in the Electric Panels manufactured M/s Kailash Industries for them, they provide the same through their returnable challans. Their technical team, on routine basis, visit the factory premises of M/s Kailash Industries for ongoing inspection of their goods being manufactured as per their purchase orders. There is only one manufacturing plant/facility at E 68, Ghaziabad for manufacturing of Electric Panels/Accessories. 6. Shri K. C. Gupta in his statement dated 24/07/2013, it appeared to Revenue, admitted that they g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period of limitation was invoked along with proposal to impose penalty. Further, M/s Kailash Industries were also required to show cause as to why penalty should not be imposed upon them under Rule 26 of CER, 2002 read with Section 11AC of the Act. 9. The Show Cause Notice was adjudicated on contest and vide Order-in-Original dated 12/06/2015 the proposed demand was confirmed along with interest and further equal amount of penalty was imposed on the appellant. Further penalty of ₹ 1 lakh was imposed on M/s Kailash Industries under Rule 26 of CER, 2002. The learned Counsel for the appellant informed that Shri K. C. Gupta proprietor of M/s Kailash Industries had died sometime in January, 2014 (08/01/2014) and intimation was also given to the concerned Adjudicating Authority. The ld. Counsel said that in this view of the matter, the penalty imposed on Shri K. C. Gupta, after his death, is bad and nonest in law. 10. Being aggrieved by the said order, the appellant preferred appeal before ld. Commissioner (Appeals) who vide the impugned order was pleased to reject the appeal. 11. Being aggrieved by the order of ld. Commissioner (Appeals), the appellant is before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is supplied by the principal and they raised their invoice for job work bill only. 13. The ld. Counsel further states that this appellant having its unit/shed adjacent to the unit of his father on the same plot was only doing the fabrication of the raw box from the material provided by M/s Kailash Industries. All the other work of painting, finishing, designing and fitting of electrical equipments and fabrication of junction boxes, etc. were all done by M/s Kailash Industries themselves. The work of fabrication of boxes required very minimal labour in the shape of bending of the steel sheets and welding. The amount involving is very small or minimal, no bill was raised by this appellant on his father's firm M/s Kailash Industries. From Annexure-2 to the SCN, it is evident that in Financial Year 2009 10 the total turnover of M/s Kailash Industries is ₹ 4,20,427/-. As per their invoice dated 18/04/2009 they cleared a M.S. Box @Rs.600/- to M/s Ferrolite Jointings Ltd. and other similar invoice for clearance of M.S. Box vide invoice dated 04/08/2009 @Rs.500/-. The completed boxes being sold @Rs. 500 or 600/-, the amount of value of bending the sheets in the shape of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 (Tri.- Delhi). 15. Heard the learned A. R. for Revenue, who has relied on the impugned order. 16. Having considered the rival contentions and on perusal of the facts on record, I find that the appellant and M/s Kailash Industries had led sufficient evidence to the effect that the clubbing provisions are not applicable, as M/s Kailash Industries have got their own independent existence and have been engaged in manufacturing and clearing of goods even prior to establishment of M/s Universal Engineers Traders. It is evident from the facts that M/s Kailash Industries was set up in 1993 94 whereas the appellant M/s Universal Engineers Traders had been set up during the period 2001 04, when they started manufacturing and were registered with the Central Excise Department. Further, I find that the clubbing of turnover of M/s Kailash Industries was also bad as M/s Kailash Industries was not to put to notice as to why their turnover should not be added to the turnover of the appellant M/s Universal Engineers Traders. I, further, find that the appellant unit is also entitled to the benefit of exemption Notification No. 83/94 CE, as amended as they have fabricated the panel b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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