9911796707
TMI Blog2022 (8) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... he value clearance of M/s. XPSPL for calculating the exemption limit under Notification No.8/2002-CE dated 1.3.2002 (erstwhile) and notification no.8/2003 dated 1.3.2003 for the period from 1.4.2002 to 16.5.2005? - HELD THAT:- It can be seen that out of four units and the main unit M/s. XPSPL were situated in the Ramju Ice Factory Compound but each and every company/firm had a separate and independent premises with entry door. Merely because all the four units were located in one campus, this cannot be the reason for holding that all are working in one premises accordingly, all the five manufacturers had separate factories and manufacturing units. The goods manufactured by the five manufacturers were also separate, the transactions of purchase and sale among these five manufacturers were purely on a principal to principal and commercial basis. All the five manufacturers had purchased required raw material, inputs, etc. on their own. These five manufacturers had their own equipments and infrastructures as well as separate workers and employees also - The allegation of the department that Shri Zahir I Laliwala was looking after the affairs of all the units is contrary to the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submission of the appellant that out of 3768 batteries, 3743 number of batteries were meant for offline UPS as the size of the batteries itself establishes that batteries of 7AH and 9AH power were meant for installing an offline UPS for which there was no dispute whereas, other 25 batteries of higher ampere were kept for testing only because it is on record and accepted by the appellant also that few batteries were kept in the factory for testing of online UPS manufactured therein - even during cross examination of the appellant s production manager, he has confirmed the above position. With this fact, it is found that the reason for holding that the batteries for online UPS were stored and cleared alongwith UPS by the learned Commissioner is absolutely contrary to the fact hence, the contention is not acceptable. As regard the batteries supplied with offline UPS there is no dispute as the appellants were including the value of such batteries in the offline UPS. On the appreciation of the above fact supported with various evidences, it is found that the batteries were directly supplied from the godown by the appellant company M/s. XPSPL. For this reason the value of batteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OIO-03/COMMISSIONER/RKS/AHD-II/2009 19/02/2009 Jayesh Ramanlal Shah C.C.E.-Ahmedabad-ii E/888/2009 OIO-03/COMMISSIONER/RKS/AHD-II/2009 19/02/2009 Shakeeb M Kagdi C.C.E.-Ahmedabad-ii E/1436/2009 OIA-228-229/2009-AHD-II-CE/CMC/COMMR-A-/AHD/S/9-10-A-II-/09 05/08/2009 Xsis Power Systems Pvt Ltd C.C.E.-Ahmedabad-ii E/1437/2009 OIA-228-229/2009-AHD-II-CE/CMC/COMMR-A-/AHD/S/9-10-A-II-/09 05/08/2009 Zahir I Laliwala C.C.E.-Ahmedabad-ii As regard appeal No. E/883-885,888/2009, the brief facts of the case are that the appellant M/s.Xsis Power System Pvt Ltd. (XPSPL) were having their factory at Ramju Ice Factory compound, Opposite Vishala Hotel, behind Bacha Motors, Narol-Sarkhej Road, Ahmedabad and with effect from 22.07.2005 shifted their factory to Survey No.42A, Plot No.5-B behind Sangam Cinema, Juhapura, Sarkhej Road, Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. engaged in the manufacture activities of parts of Uninterrupted Power Supply. It was noticed that other two so called manufacturing units M/s. Index Marketing and M/s. Impact Transformers were found operating from the same manufacturing premises. Further more, it was found that M/s. XPSPL were not found registered with the jurisdictional central excise authorities therefore, they hold all such manufacturing of finished goods which were found lying in a dispatch condition were placed under detention and further placed under seizure on 9.11.2005 for which a separate show cause notice vide F.No.INV/DGCEI/BRU/15/2005 dated 14.11.2005 was issued to M/s. XPSPL through Shri Zahir I Laliwala by the Deputy Director General of DGCEI. This is the subject notice for appeal nos. E/1436/2009 E/1437/2009. Further on detail investigation, a show cause notice F.No. DGCEI/AZU/36-45/2006 dated 21.12.2006 was issued by the Additional Director General of DGCEI, Zonal Ahmedabad to M/s. XPSPL. In the show cause notice it was contended that the three units M/s. INDEX MARKETING, M/s. IMPEX TRANSFORMERS and M/s. Jay Power Protection Pvt. Ltd. are dummies of M/s. XPSPL as all the three units are si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Firms namely Index Marketing, Impact Transformers, M/s Pruthvi Controls, Jay Power Production Pvt. Ltd. and M/s. XPSPL and was reporting to Shri Zahir I. Laliwala. (5) The entire premises where all the units are situated have been taken on rental basis under two separate agreements one by M/s. XPSPL and other by M/s. Jay Power Protection Pvt. Ltd., and the entire rent was born by M/s XPSPL and M/s Jay Power Production Pvt. Ltd and the same is not paid on the account of any other firm. (6) The product shown to be manufactured by all SSI units were in fact manufactured by M/s. XPSPL only and the same were shown as having been manufactured by SSI units and sold to M/s XPSPL. (7) (i) As regard the financial flow back the learned Commissioner contended that Shri Shakeeb M. Kagdi Production Manager of M/s XPSPL and also proprietor of M/s Pruthvi Controls being a common person controls all the Firms/Companies. It is evident that there was a common control of Shri Shakeeb M.Kagadi on all the Firms/Companies. All the units were using common office of M/s XPSPL and there is no evidence for the Company/Firms had paid rent to M/s XPSPL for utilizing office premises of M/s XPSPL. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of clearances of all four units and the value of batteries in the clearance value of M/s. XPSPL and consequently, the value has exceeded not only the exemption limit of Rs.1 Crore but also the eligibility threshold limit of Rs.3 Crores as provided under Notification No.8/2002-CE dated 1.3.2002 and 8/2003-CE dated 1.3.2003. The adjudicating authority on the basis of the above finding denied the said exemption, confirmed the excise duty demand and also imposed personal penalty on Shri Zahir I Laliwala, Shri Yasin I Laliwala, Mrs. Nashim I Laliwala, Shri Jayesh Shah ,Shri Shakeeb M Kagdi. Being aggrieved by the impugned orders dated 20.2.2009 and 05.08.2009, the appellants filed the present appeals. 02. Shri Aditya Tripathi, learned counsel appearing on behalf of the appellants reiterates the grounds of appeals made in the appeal memo. He further submits that all the four units, the value of those have been clubbed in the value of M/s. XPSPL were separate entities. He submits that the products in question i.e. Uninterrupted Power Supply (UPS)/ Inverter/ Constant Voltage Transformer (CVT) are eligible under small scale industrial unit were entitled for the SSI exemption on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeb Kagdi and Shri Zahir I Laliwala. He submits that Commissioner s finding is based on selective parts of the various statements of these persons were used in the impugned order but these statements are also not an evidence showing that the four firms namely M/s. Impact Transformer, M/s. Index Marketing, M/s.Jaypee Power and M/s. Pruthvi Controls did not exist as independent manufacturer. His contention is also not correct that these four firms did not have independent transactions of their own. He submits that the Commissioner has ignored the clarification about the independent units given by the appellant during the adjudication. With regard to the issue of clubbing of clearances, the appellants relied upon the following decisions:- Prabhat Dyes and Chemicals Vs. Collector of Central Excise- 1992 (62) ELT 469 (Tribunal) Swastik Egg. Works Vs. Collector of Central Excise- 1992 (62) ELT 313 (Tribunal) Shri A. Rathinam, Prop. Of Micheal Match Works Vs. Collector of Central Excise- 1992 (60) ELT 451 Diamond Engineering Trading Corpn. Vs. Collector of C.Ex- 1989 (44) ELT 92 Bhagwandas Kanodia Ors. Bombay Vs. Collector of C.Ex., Bombay- 1987 (32) ELT 204 (Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. As regard the common administration, he submits that there was no common staff in so far as workers and employees were concerned and only common premises shared by the five manufacturers was also office the located at Ellisbridge Shopping Centre but this office also belongs to Shri Zahir I Laliwala, and not to the company and in any case only because Shri Zahir I Lalilwala of M/s. Xsis Power System Pvt. Ltd. has allowed his family members to use as their office, test of financial flow back will not be said to have been satisfied. He submits that in view of the above facts and the explanation of the appellant, the Commissioner had no jurisdiction to have clubbed clearances of the manufacturers viz. M/s. IMPACT TRANSFORMERS, M/s. INDEX MARKETING, M/s. JAY POWER PRODUCTION, M/s. PRUTHVI CONTROLS with the clearance value of M/s. Xsis for denying not only the benefit of SSI Exemption Scheme but also independent existence of these manufacturer therefore, the impugned order on this issue is liable to be set aside. 2.3 As regard the inclusion of value of battery in the assessable value of UPS/Inverter/Constant Voltage Transformer, he submits that the entire demand was confirmed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nline UPS and Offline UPS (having inbuilt battery) that this difference was explained by the appellant in the adjudication proceeding with reference to the batteries found in the factory premises of M/s. XSIS at the time of panchnama made on 16.5.05. He submits that batteries are not integral part of the uninterrupted power supply (UPS), the UPS can function even without battery. However, this is also an error on the part of the Commissioner in as much as Annexure B to the panchnama dated 16.5.05 made at the factory of M/s. Xsis shows that 3743 batteries were for offline UPS and size of battery itself establishes that batteries of 7AH (i.e. 7 Ampere per hour) and 9AH power were meant for installing in offline for which there was no dispute whereas, other 25 batteries of higher ampere were kept for testing only because it is on record and is accepted by the appellants that few batteries were kept in the factory for testing online UPS manufactured therein therefore, the appellant s submission that batteries for online UPS was not brought in the factory was correct. 2.6 He submits that the adjudicating authority has committed an error in misappreciating the fact from the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed reliance on the following decisions:- ALPHA CONVERTING MACHINES P LTD.- 2018 (364) ELT 141 (Tri.-Abad) GANJAN FABRICS DISTRIBUTORS- 1997 (92) ELT 451 (SC) KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD.- 1994 (71) ELT 508 MUMERIC ELECTRONIC P LTD- 2001 (138) ELT 1202 (Tri-Chennai) INDUSTRIAL SUPPLIES SERVICE- 2001 (128) ELT 175 (Tri-Delhi) ELECTRONICS CONTROL POWER SYSTEMS P LTD- 2010 (257) ELT 578 (Tri-Bang) SRI SAI ENTERPRISES- 2010 (258) ELT 448 (Tri-Del) SYSTEMS COMPONENTS P LTD- 2004 (165) ELT 136 (SC) GOPAL TEXTILE MILLS- 2007 (215) ELT 558 (Tri-Ahmd) TEJWAL DYESTUFF INDUSTRIES- 2007 (216) ELT 310 (Tri-Ahmd) TULSI POLYMERS P LTD.- 2005 (183) ELT 59 (Tri-Mum) 04. We have carefully considered the submissions made by both the sides and perused the records. The issue for our consideration are as under:- (i) Whether the value of clearance of M/s. Impex Transformers, M/s. Index Marketing, M/s. Jay Power Protection Pvt. Ltd., M/s. Pruthivi Controls and M/s. Parth Electronics are includable with the value clearance of M/s. XPSPL for calculating the exemption limit under Notification No.8/2002-CE dated 1.3.2002 (erstwhil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court From the above, it is clear that whether the assessee demand the cross examination or otherwise, to admit an statement as evidence particularly, in the present case the appellant have produced ample of evidence to discard the contention of the learned Commissioner that all the four units are indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and the same were relocated only due to the communal riots of February, 2002. This clarification given by the witnesses creates more reason for Commissioner to examine all other witnesses for admission of statements as the evidences. It is observed that the Commissioner has failed to follow the mandatory provision of Section 9D of Central Excise Act, 1944. In view of this, the statements cannot be given a treatment of gospel truth and the same alone cannot be made the basis for deciding the entire case. 4.2 We further find that the appellants have submitted a chart showing the incorporation/setting up of all the units which is reproduced below:- SR. NO. COMPANY NAME DIRECTOR PROPRIETOR NAME DATE OF INCORPORATION ADDRESS ACTIVITIES 1 XSIS POWER SYSTEM PVT LTD DIRECTOR ZAHIR I LALIWALA MEENAZ I LALIWALA SURIYA I LALIWALA 08/01/1991 220, 2ND FLOOR, ELLISBRIDGE SHOPPING CENTRE, ELLISBRIDGE Manufacturing and Trading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious persons to arrive at the conclusion that all the units were located in a common premises. As we already stated above prior to February, 2002 all the units were located at different and distant places. Only after February, 2002 due to difficulties due to communal riots took place in February, 2002 those units were shifted to the above premises. From the above map, it can be seen that out of four units and the main unit M/s. XPSPL were situated in the Ramju Ice Factory Compound but each and every company/firm had a separate and independent premises with entry door. Merely because all the four units were located in one campus, this cannot be the reason for holding that all are working in one premises accordingly, all the five manufacturers had separate factories and manufacturing units. The goods manufactured by the five manufacturers were also separate, the transactions of purchase and sale among these five manufacturers were purely on a principal to principal and commercial basis. All the five manufacturers had purchased required raw material, inputs, etc. on their own. These five manufacturers had their own equipments and infrastructures as well as separate workers and emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . whereas, Shri Vinod R Patel had been a totally independent person not having any connection or relationship with M/s. Xsis Power System Pvt. Ltd. or any other manufacturer involved in this case. We find that Shri Vinod R Patel also had other business interest and therefore, it was totally incorrect fact that the Commissioner has considered in the adjudication that Shri Vinod R Patel did not have financial strength and that he was manufacturing goods in the factory of M/s. Xsis Power System Pvt. Ltd. 4.6 As regard M/s. Jay Power Protection Pvt. Ltd., the learned Commissioner has held that the company was discontinued its operation from 31.03.2005 but the fact remains that the documents clearly shows that this manufacturer continued manufacturing and other related activities in the year 2005-06 also and the details of manufacturer s sale, purchase, etc of M/s.Jay Power Production Pvt. Ltd. were detailed in the balance sheet and books of accounts also. 4.7 The adjudicating authority also contended that the Constant Voltage Transformer, Inverter were manufactured by M/s. Xsis Power System Pvt. Ltd., we find that there are evidences which shows that the Constant Voltage Transfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny financial dependence of any nature or whatsoever on the other (or with M/s.Xsis). The learned Commissioner could not adduce evidence either by showing any financial records or in the books of account that there is any financial flow back among these five companies/firms. Only because the proprietors/directors of five manufacturing firms belongs to one family or that they were related to one another, the test of mutuality of interest has not been satisfied. The learned Commissioner has held in the impugned order that there was no common control of Shri Shakib M Kagdi on all the firms/companies. Firstly this was not proved beyond doubt secondly this finding does not show financial flow back or any financial transaction inter se. The learned Commissioner also contended that all the five manufacturers were utilising plant and machineries of M/s. Xsis Power System Pvt. Ltd. but this finding is also incorrect in as much as it is found by the investigating officers during investigation that all the five manufacturers had differently demarcated each rooms/galas in one premises located at Ramju Ice Factory Compound and all these rooms/galas had installed therein various machineries, equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finance between the main units and its subsidiaries. No such evidence has been referred to or discussed apart from merely pointing out that the three units were partnerships in which all the partners were close relatives. In case of Jagjivandas Co. Vs. Collector of C. Ex., Bombay I reported in 1985 (19) ELT 441 (Tribunal), the Tribunal has considered a similar situation. The Tribunal held that circumstances such as commonness of partners, use of common premises, occasional use of machinery of one firm by the other will not be sufficient to justify the clubbing of clearances or to say that it was case of manufacture for or on behalf of another. It is also noted that the decision of the Tribunal in Jagjivandas Co., Thane, has since been upheld by the Supreme Court which had dismissed on 2.8.1989 the Civil Appeal No. 4173 of 1986 filed by the Collector of Central Excise, Bombay. In the case of Shri A. Rathinam, Prop. of Micheal Match Works Vs. Collector of Central Excise - 1992 (60) ELT 451 it has been held that :- for SI exemption the clubbing of clearances of eight match factories situated in the same compound and having a common trading agent - on the date of visit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Hence, the asessesses are entitled to the benefit of Notification No. 80/80-CE as amended, wherein it was clarified that as far as common use of staff and telephone is concerned would not go to prove that both the units are one in the eye of law. This issue is already decided in the following cases also : J awant Sugar Mills Ltd. Meerut Vs. UOI Ors. Jagjivandas Co. (supra) Tribunal. Shree Packaging Corporation (supra) Tribunal. 1994 (72) ELT 62 (Tribunal) in the case of Prima Control (P) Ltd. Vs. Collector of C. Ex. Pune - held that SSI exemption - value of clearances - clubbing of holding of shares by common Directors not to make one company a subsidiary of another; especially when both companies are geographically apart without any financial flow back - sufficient evidence not produced by department to show that one company is a dummy unit of another - value of clearances of two companies not to be clubbed exemption under Notification No. 175/86-CE dtd. 1.3.1986 available. 1994 (71) ELT 689 (Tribunal) in case of Alpha Toys Ltd. Vs. Collector of C. Ex., New Delhi - held that SSI Exemption - clubbing of clearances - Dummy Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common partners - clearance not clubbable for determining eligibility for exemption when certificate of registration; partnership deeds; balance sheets and income tax assessment etc. indicative of the firms being two distinct legal entities - Notifn. No. 89/79 dtd. 1.3.79. 1989 (43) ELT 327 (Tribunal) in the case of M/s Kinjal Electricals Pvt.Ltd. Vs. Collector C. C. E. - held that Value of clearances- exemption - Firms having separate legal entities and having no financial flow back between the two - clearances of the two firms not to be clubbed together although proprietor of one is clearly related to the Director of the other - Notifn. No. 83/83. 1991 (53) ELT 85 (Tribunal) in the case of International Dyestuff Mig. Co. Vs. C.C.E - held that value of clearances - SI exemption - eligibility of exemption under Notification No. 71/78 close relationship between partners of one firm and proprietor of other concern; and use of staff not sufficient to hold that units are one and the same justifying of clubbing of value of clearances. 1994 (72) ELT 893 (Tribunal) in the case of Lakshmi Industries Vs. C.C.E - held that value of clearances - clubb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption - clubbing of clearances - proprietor of a proprietary unit also a partner along with his wife in another unit - clearances of the two units not clubbable despite common use of some staff - two units registered separately with sales tax and income tax authorities - value of clearances not clubbable. CE 1991 (54) ELT 135 (Tribunal) Sahuwals Cylinders Ltd. Vs. Collector of C. Ex. SI exemption - Units registered as SI - when the authority issuing the certificate has declared that the unit has obtained SI status - there is no reason why the appellant should be denied the entitlement to the benefit extended to SI units and similar view was taken by Tribunal in the case of Collector of C. Ex.. Madurai Vs. Maharaja Paper Board (P) Ltd., reported in 1986 (23) ELT 484 . clause 4 of Notification No. 175/86-CE makes it a condition that a factory should be registered with the Director of Industries as a ssi and once such a certificate is issued with an emphasis that unit has obtained status of S.S.., it should be taken as sufficient fulfillment of the condition to avail the benefit In a judgement rendered by the Hon'ble Rajasthan High Court in case of Renu Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another because even the managerial control should involve flow back of profit to the principal manufacturer. In a case of Process Plant (India) Ltd. Vs. CCE, Bombay reported in 1999 (32) RLT 651, the Appellate Tribunal has once again held that commonality of interest by way of common management, common directors, supply of entire production by three units to only one unit, purchaser paying advances to three units, etc. were not sufficient factors to treat three units as dummies of the fourth one. In view of the above catena of judgments and the observation made therein, we find that even in worst scenario than the charges made in the present case by the revenue, the various forums have held that clearances of different units cannot be clubbed and consequently, the exemption to SSI Unit cannot be denied. Following the decisions and the ratio made therein in the above judgement, we are of the view that the value of all four units namely M/s. Impact Transformers, M/s. Index Marketing, M/s. Jay Power Protection Pvt. Ltd. and M/s. Pruthvi Controls cannot be clubbed with the value of M/s. XPSPL and consequently, each company/ firm having its clearance value within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3743 number of batteries were meant for offline UPS as the size of the batteries itself establishes that batteries of 7AH and 9AH power were meant for installing an offline UPS for which there was no dispute whereas, other 25 batteries of higher ampere were kept for testing only because it is on record and accepted by the appellant also that few batteries were kept in the factory for testing of online UPS manufactured therein. The said submission of the appellant has strong force therefore, the learned Commissioner s contention that these 3768 batteries since lying at the factory was made the basis to hold that the appellant were receiving batteries in factory is absolutely incorrect. We find that even during cross examination of the appellant s production manager, he has confirmed the above position. With this fact, we find that the reason for holding that the batteries for online UPS were stored and cleared alongwith UPS by the learned Commissioner is absolutely contrary to the above fact hence, the contention is not acceptable. 4.13 We further observed that Shri Shakeeb M Kagdi in his statement recorded on 9.11.05 has also as regards the batteries lying in the factory on 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of UPSS (Uninterrupted Power Supply System) from the Branch Offices/Sales Offices of the respondent-company during the period of dispute (April 2000 to August 2001) was liable to be included in the assessable value of the UPSS. The original authority held that the cost of battery was includible in the assessable value, but the first appellate authority set aside that decision and held to the contra. The Revenue is aggrieved by this decision of the learned Commissioner (Appeals). Upon examination of records, we note that UPSSs without battery were cleared from the factory to branch offices/sales offices (so called in the assessee s parlance) on payment of duty on the assessable value of the goods in the form they were cleared from the factory. We further note that, at the branch office/sales office, batteries bought out from the market were clubbed with the above goods and UPSSs with battery were cleared from the premises to the ultimate customers. It is the case of the Revenue that the testing/charging/synchronizing of the battery with the equipment manufactured and cleared from the factory was done at the branch office and expenses thereof were added to the manufacturing ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (191) E.L.T. 379 (Tribunal) [Department s appeal against this decision was dismissed vide 2006 (193) E.L.T. A23 (S.C.)] (4) CCE v. Jeetex Engg. Co. [2001 (130) E.L.T. 801 (Tri. - Che)] (5) Goetze (India) Ltd. v. CCE [2004 (169) E.L.T. 274 (T-Del)] Reliance has been placed on the above decisions in support of the counsel s plea that the cost of bought-out components cannot be included in the assessable value of the goods manufactured and cleared from the factory. It is submitted that the case developed by the Revenue in the present appeal is beyond the scope of the show-cause notice wherein it had not been alleged that UPSS was cleared as a complete set with battery from the branch office seemingly reckoned as an extension of factory. It was also not alleged in the show-cause notice that manufacturing activities were undertaken in the branch offices. 4 . We note that, in the impugned order, the learned Commissioner (Appeals) found that the bought-out item (battery) never came to the factory and the same was sold from depot . Thus the Commissioner (Appeals) preferred to assess UPSS in the form it was cleared from the factory. The above finding of fact rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, wherein battery was an integral part of the UPSS in the form it was cleared from the factory, cannot be applied to this case. In this connection, the decisions cited by the learned counsel seem to be supportive of our view. The documents (invoices) produced by the learned JCDR are not of any aid to the case of the Revenue as made out in the show-cause notice. In the result, this appeal of the Revenue gets dismissed . DB Technologies Pvt. Ltd.-2009 (238) ELT 100 (Tri.-Mumbai) 4 . We find that the Tribunal in its order reported in 2000 (126) E.L.T. 1017 (final order No. 184/2000-A dated 16-3-2000 in appeal No. E/1395/95-A) has clearly held that the value of batteries is to be added to the assessable value only in cases where the UPS systems were cleared from DBE along with battery. The Commissioner has conducted verification through the Superintendent of Central Excise who has reported categorically as under :- The documents have been verified. Nothing has been identified evidencing clearance of batteries along with UPS. However, certain invoices have been identified indicating direct dispatch of batteries from the premises of the suppliers of batterie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (150) ELT 422 (Tri.-Mumbai) 3 . We have examined the judgments. In the latter cited judgment, the Tribunal had departed from their earlier judgment in the case of Tata Libert Limited [2000 (121) E.L.T. 474 (T) = 2000 (39) RLT 1006] and had adopted the ratio of the judgment in the case of C.C.E. v. Jeetex Engineering Limited [2000 (130) E.L.T. 801]. In the judgment, the Tribunal noticed that the manufacturer had manufactured incomplete UPS and had arranged to supply the batteries as trading activity. The ratio of this judgment squarely applies to the facts of the present case. Shri Umashankar relies upon the Tribunal judgment in the case of Supra Hi-Tech Electro Equipment (P) Ltd. [1997 (93) E.L.T. 604] where the value of batteries was held as includible in the value of the UPS. Shri Prakash Shah distinguished this decision of on the observation that in that case, the batteries were supplied from the manufacturer s factory along with the UPS system. The learned Departmental Representative also cites judgment reproduced in 1994 (71) E.L.T. 508 in support of his argument. We find that this was considered by the Tribunal in the cited judgment of A.Z. Electronics and was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in CCE v. D.B Electronics Pvt. Ltd., 2000 (126) E.L.T. 1017 (T) = 2000 (39) RLT 913 is specifically on the issue before us - inclusion of the value of batteries in the value of UPS. The decision of the Tribunal in Tata Libert Ltd. v. CCE, 2000 (121) E.L.T. 474 (T) = 2000 (39) RLT 1006 is also proceeded on the footing that the batteries were essential part of UPS . D.B. Electronics P. Ltd.-2000 (126) ELT 1017 (Tribunal) 2 . We have perused the records and considered the submissions. The allegation that M/s. Vistar Electronics Pvt. Ltd. was related to M/s. D.B. Electronics is obviously not sustainable in view of the share holding pattern itself. Further, it was being managed by Mr. H.V. Joshi and the 2 partners of D.B. Electronics were also removed from its Board of Directors in March, 1991. Therefore, the allegation of relationship between two companies is not sustainable and the demand of duty has to be determined with reference to manufacture and removal from M/s. D.B. Electronics. We, therefore, hold that the value of batteries is to be added to the assessable value only in cases where the UPS was cleared from D.B. Electronics along with battery. The rest of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those cases being the facts different from the facts of this case are not applicable. As regard the judgments relied upon by the revenue in case of inclusion of value of batteries in the value of UPS all these judgments are on the fact that the batteries have been cleared along with UPS from the factory of manufacturer whereas, we held above in the present case the batteries were cleared from outside the factory directly and not along with UPS therefore, the judgements relied upon are of no help to revenue. 4.17 As regard appeal nos. E/1436/2009 E/1437/2009, these appeals are against orders of Commissioner (Appeals) who upheld the confiscation of seized goods and consequential penalties. This confiscation is the result of denial of SSI exemption Notification No.08/2002-CE and 08/2003-CE. Since we hold that all the five companies/firms are independently entitled for exemption and no duty liability arises, the confiscation and consequently fine and penalties will also not sustain. 4.18 As per our above discussion and findings on both the issues i.e. clubbing of value of four units with M/s. XPSPL and inclusion of value of batteries in the value of UPS, we are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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