9911796707
TMI Blog2019 (8) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... riff Act, 1985. During the relevant period 2004-05 to 2008-09, they had been availing small scale exemption under Notification No.8/2003- CE, dt.01.03.2003 and filed prescribed quarterly returns and discharged appropriate excise duty on clearance of excisable goods in excess of specified exemption limit under the said Notification. The Appellant's factory is situated at Malad in Mumbai whereas their administrative office is at Vadala in Mumbai. The purchase orders from customers were received at their administrative office, and communicated for execution to the factory at Malad. The raw materials mostly electronic items are assembled and programmed to form the machine, checked for quality control and made to ready for dispatch. A unique identification number is assigned to each of the machine for internal purpose. Similarly, a hardware configuration report is prepared, listing all parts used for assembly of the finished goods. From the Malad factory, machines were either directly supplied to the customers or dispatched to the administrative office, from where these were further supplied to the clients. The hardware installation report prepared in duplicate is also maintained at adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory at Bangalore is merely a flat and M/s JRSE do not have technical equipment and technical manpower required to manufacture the goods in the said premises. Besides, the employees of M/s JRSE could not provide the production record to the investigating authority to establish the fact that manufacturing activity carried out at M/s JRSE at the premises at Bangalore. It is also alleged that Shri Shashikant Bhairi, Technical Director of M/s JRSE looking after the operations at Bangalore, has deposed in his statement that the goods cleared under the invoices of M/s JRSE were not manufactured at Bangalore and he does not know the source of the manufactured goods. Similarly, Mr. Shivakumar, an employee of the Appellant Company, who introduces himself as Branch Manager of M/s JRSE occupied a table space at office of M/s JRSE at Bangalore and also signs VAT returns of M/s JRSE. Therefore, the factory of M/s JRSE had been used by both M/s Prints Electronics Equipments Pvt. Ltd and M/s JRSE. Thus, it is alleged that they have mutual interest in the business of each other and all the finished goods were manufactured only at Malad factory of M/s PEEPL and the manufactured goods were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no evidence to show that the goods were alleged to have been cleared under the invoices of M/s JRSE being manufactured in the premises of Appellant M/s PEEPL at Malad and the department has miserably failed to establish the said fact. There is no evidence of transporter that goods were transferred from the premises of M/s PEEPL under the invoices of M/s JRSE. There is not a single statement of the Customer stating that invoices of M/s JRSE were supplied against the goods manufactured/cleared by M/s PEEPL. Hence, the demand is not sustainable In support, they have referred to the judgment of this Tribunal in the case of Summerking Electricals (P) Ltd Vs CCE - 2004 (176) ELT 302 (Tri.). 12. The learned Advocate Shri M.S. Murthy for the Appellant M/s JRSE submitted that in the impugned order, penalty has been imposed on the Appellant under Rule 26 of Central Excise Rules, 2002, observing that the Appellant had no manufacturing set up to manufacture the goods. It is alleged that the goods were manufactured by M/s PEEPL Pvt. Ltd and cleared in the name of M/s JRSE. In arriving at the said conclusion, it is assumed that the premises where M/s JRSE was operating being a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit dt.31.01.2009 clarified the manufacturing activity beyond any doubt. Further, he has submitted that therefore, imposition of penalty under Rule 26 of CER, 2002 on the Appellant M/s JRSE are unwarranted and uncalled for, hence liable to be set aside. 14. Heard both sides and perused the records. 15. The Appellant M/s PEEPL has not disputed the liability of duty of Rs. 1,40,709/- which they have paid on providing upgraded machines to existing customers in exchange of old machines. The issue for consideration in the present appeals is whether during the relevant period 2004-2005 to 2008-2009, the Appellant M/s PEEPL had exceeded the SSI exemption limit of Rs. 1.00 crore / 1.50 crore, as the case may be, prescribed under Notification No.8/2003-CE, dt.1.3.2003 as amended. The allegation of the Revenue is that even though M/s PEEPL during the period manufactured and cleared the goods from the said premises but has not included the value of clearance of all the manufactured goods in their gross turnover, and part of the clearances were effected on the invoices of M/s JRSE. The argument of M/s PEEPL and M/s JRSE are that both these companies are independent in existence and separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een built up by the Revenue mainly on the ground that since M/s JRSE alleged to have no adequate manufacturing facility on the date of visit of the officers to the premises at Bangalore, one of the employee of M/s PEEPL stationed at Bangalore and statements of employees/Director that all the goods must have been manufactured at the premises of M/s PEEPL at Malad, Mumbai and cleared without payment of duty, under the invoice of M/s JRSE. 17. There is no evidence to the effect that M/s PEEPL Ltd had procured raw material assembled at their premises at Malad and cleared/sold in the market without payment of duty. No evidence has been brought on record of those buyers who purchased the said goods and to whom the manufactured goods were sold and mode of delivery of alleged goods clandestinely from the manufacturing premises at Malad to the buyer's premises. 18. In absence of substantial evidences of manufacturing and clearances of the goods, it cannot be assumed that since, the facility of manufacture at the premises of M/s JRSE, is inadequate, therefore, the goods must have been manufactured and cleared from the premises at Malad Unit of M/s PEEPL in the local market against the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
