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TMI Blog2019 (9) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... rances made during the relevant financial years 2005-06 & 2006-07. On the basis of investigation that the respondent had wrongly availed the SSI exemption benefit for the financial year 2005-06 & 2006-07 against clearance of PVC pipes by not including the value of clearances from the other unit namely, M/s Kumar Polyextrusion, which is owned by the wife of the proprietor Shri Kumar Shankar Mali, show-cause notice was issued to the respondent for recovery of duty short paid for the said financial years 2005-06 and 2006-07, amounting to Rs. 27,66,055/- by clubbing the clearance of both the units; proposed confiscation of unaccounted raw materials in M/s Kumar Polyextrusion valued at Rs. 63,29,950/-, proposed for confiscation of machinery and raw materials valued at Rs. 12,00,000/- and penalty under relevant provisions; personal penalty on the another noticees. On adjudication, the demand was confirmed with interest and penalty; seized materials were directed to be confiscated with an option to release the same on payment of fine and personal penalty imposed on other noticees. Aggrieved by the said order, the respondents filed appeal before the learned Commissioner (Appeals), who in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired for both the units were purchased by Shri Kumar Shankar Mali. All instructions in respect of M/s Kumar Polyextrusion was received from Shri Kumar Shankar Mali and the proprietress Mrs. Latika Kumar Mali was neither involved in day-to-day activity nor looking after the business of the company. Further, he has submitted that the screens of brand names viz, 'Mali Pipe', 'Finoflex' and 'Finorex' are in the custody of M/s Kumar Polyextrusion. 5. He has further contended that in his statement, Shri Kumar Shankar Mali has admitted to have financed M/s Kumar Polyextrusion by selling agricultural land and from the profit earned and loan from Sangola Branch of Pandharpur Urban Bank. Further in his statement, he had stated that he was looking after all the activities of M/s Kumar Polyextrusion. The learned AR has further submitted that Mrs. Latika Kumar Mali in her statement admitted that she was not at all concerned with the day-to-day working of unit and entire work of factory was looked after by her husband for which she has executed the Power of Attorney in his name. Further, she has admitted that she was not aware of anything about business activity of M/s Kumar Polyextrusion and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contra, learned Advocate for the respondents has submitted that show-cause notice was issued to them on 16.10.2007 to all the four respondents proposing to deny SSI exemption by clubbing clearance of M/s Mali Pipe Industries and M/s Kumar Polyextrusion, which on adjudication was confirmed and personal penalty imposed on other two respondents. All the four respondents had filed appeal before the learned Commissioner (Appeals). It is his contention that the Revenue has filed only one appeal mentioning all the four respondents whereas the Revenue ought to have filed separate appeals against every party. Since only one appeal has been filed, therefore, the appeal becomes infructuous. 8. On merit, the Ld. Adv. has submitted that both these units having separate Income Tax PAN No., Sales Tax registration, Bank A/c No., SSI registration etc. and these are separate in existence and also function independently having full-fledged machinery and manufacturing activity. It is his argument that there is no free flow of finance between respondent No. 1 and 2. Initially in the year 2001-02, a loan of Rs. 2.00 lakhs was advanced to Shri Kumar Shankar Mali, which was later returned by M/s M/s K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Revenue that even though on paper M/s Kumar Polyextrusion has been shown a separate legal entity, whose proprietress is Smt. Latika Kumar Mali, W/o Shri Kumar Shankar Mali, but in fact, the said unit is fully controlled by Shri Kumar Shankar Mali, husband and proprietor of M/s Mali Pipe Industries. In her statement, Smt. Latika Kumar Mali has admitted that she is not at all aware of any of the activities of M/s Kumar Polyextrusion nor even aware of how the said unit is functioning and carrying out its day-to-day business of manufacture and sale of the finished goods. In her statement, she has categorically stated that the entire business and management had been carried out by her husband Shri Kumar Shankar Mali and she being a housewife signs all the paper as directed by her husband from time to time without being aware of what paper was placed before her for signature. The statements furnished by the proprietors and the employees were never retracted nor had been challenged during the entire proceeding as untrue or collected by application of force or question. Therefore, these statements cannot be ignored in absence of reasons. 14. We find that the learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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