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TMI Blog2019 (8) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 - 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 invoices of M/s JRSE. The kind of electronic goods manufactured by the Appellants, do not require a huge premises and machineries; it could be assembled with simple tools/machineries. The demand confirmed clubbing the clearances of M/s PEEPL with that of M/s JRSE, is not sustainable - penalties also set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No.44 of 2011, 41 of 2011, 45 of 2011, 68 of 2011 - A/86359-86362/2019 - Dated:- 5-8-2019 - DR. D.M. MISRA, MEMBER (JUDICIAL) And MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Jayesh N. Shah, Shri Rajesh Ostwal, Advocate for M/s P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enterprise and engaged in the manufacture of vehicle tracking system, electronic attendance recorder, etc. The goods manufactured by the Appellant M/s PEEPL Pvt. Ltd. are also manufactured by M/s JRSE. However, the items like electronic attendance recorder etc. manufactured by M/s JRSE were totally different in quality from those manufactured by the Appellant M/s PEEPL. 4. M/s JRSE had availed SSI exemption and not paid the duty during the relevant period. The director of M/s M/s JRSE viz. Mr.Jayesh Shah, Mr.Ramanuja Varadachari and Mr. Shashikant Bhairi stationed at Bangalore factory and were taking care of manufacturing activities there. M/s JRSE procures raw materials such as assembly etc either by way of import or from local market as their administrative office is situated in Mumbai from where it is further supplied to the factory at Bangalore. 5. M/s PEEPL in some cases, receive from the customers their existing machine for replacement by upgraded machine. Accordingly, M/s PEEPL cleared the upgraded machine to the customers on payment of appropriate excise duty by determining the assessable value in terms of Section 4 of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovide the corresponding invoices in respect of certain hardware installation report issued for repair and reconditioning of the goods which were found at office at Vadala. 9. The learned Advocate, assailing the impugned order, has submitted that nowhere the Department has alleged that M/s JRSE is a dummy unit of the Appellant company M/s PEEPL. Hence, clubbing of the clearance value of M/s JRSE to that of the Appellant is unsustainable. Further, they have submitted that even if it is assumed that the goods were cleared under the invoices of M/s JRSE were not manufactured at their Bangalore factory, then also the situs for levy and collection of duty is at Bangalore, hence the show cause notice issued by Commissioner at Mumbai is beyond jurisdiction. In support, they referred to the judgment of the Tribunal in the case of Modern Industrial Enterprises Vs CCE 2006 (193) ELT 513 (T). 10. It is their contention that the department has also failed to prove any mutuality of interest or financial flow back between the two companies. Also, no evidence has been placed to establish the financial or managerial control of both the companies by one person. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, has argued that M/s JRSE had been the real manufacturer of the goods in their factory even though the premises was a flat and the findings of the learned Commissioner were not in consonance with Mazhar. It is his contention that the process of assembly of the raw material was going on in the said premises at the time of visit of the officers which is evident from the fact that there were around 10 pieces of finished goods lying in the said premises. In support of his contention that the goods were manufactured at Bangalore the learned Advocate has placed certificate from the Karnataka Director of Industries Commerce allowing manufacturing in the said premises, Product catalogue of the Appellant, sales turnover and Audit report of the Appellant indicating the manufacturing sales, and also letter dt.22.12.2008 addressed to the Inspector of Central Excise, Bangalore explaining the process of manufacture undertaken by M/s JRSE. Also, it is contended that they have demonstrated from the seized records that it contains copies of Bills of Entry of various imported raw materials, local purchases, courier documents indicating dispatch of the finished goods from their Banga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice of M/s JRSE cannot be added to the value of the clearances of M/s PEEPL. We find that in confirming the demand, the Revenue has mainly relied upon the statements of various persons and the manufacturing facility available at the unit of M/s JRSE at Bangalore. 16. It has been recorded by the authorities below that on the date of visit of the premises of M/s JRSE, the visiting officers could not find any substantial machinery nor work force in the said premises where the manufacturing activity of M/s JRSE claimed to have been carried out. In answering the allegation, the Appellant has submitted that during the said period in question, some semi-finished goods were found in the said premises as per the pending orders; they are duly registered under the Directorate of Industries Commerce, Govt. of Karnataka to manufacture electronic equipments viz. vehicle tracking system, attendance recording system in the said premises. Further, during the period in question, i.e. 2004-05 to 2007-08, they have carried out the process of assembly of various imported as well as indigenous materials in the said premises and sold the same to the customers independently. The detai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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