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TMI Blog2008 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ellery and M/s. Jaya Jewellery were operating from the same premises having common plant and machinery, common staff, common procurement of raw material and common sale of finished goods. Though the machines were purchased in the name of three units showing different address, they were in fact installed in the same premises and were being commonly used by all the three companies without maintaining company-wise production, without paying any labour job to each other, without having any memorandum of understanding for using the machinery and premises of each other and without paying any rent for using premises/machineries of each other. Even though the brand name Rolex belongs to Alex Industries and Saloni to Alex Jewellary, sale invoices we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of Rs. 1,000/- under Rule 209A on Shri Mudliar. Joint Commissioner however allowed deduction of Rs. 25,00,000/- alleged to be transactions in cash in the month of April 2001 on the ground that besides two statements of Shri Joshi and Shri Mudliar, there was no other corroborative evidence. Order-in-Original had demanded entire duty from Alex Industries. 4. An appeal was filed by Revenue against the order of Joint Commissioner wherein cash transaction of Rs. 25,00,000/- was deleted for the purpose of calculating the turn over of the company and this appeal was rejected by Commissioner (Appeals). The respondents however did not file any appeal against the order of Joint Commissioner. It is against the order of Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits was proposed to be clubbed. Similarly in the case of CCE v. Supreme Electrical Appliances - 2001 (131) E.L.T. 271 (Tri.-Del.), it was held that appeal by Department is not maintainable against one assessee without hearing other units whose clearances were proposed to be clubbed with assessee and appeal against whom was dismissed as time-barred. 6. It was submitted that if this appeal is held to be still maintainable then Revenue's appeal is liable to be dismissed on the ground that even if there is a cash transaction of Rs. 25,00,000/- in the month of April 2001, the cash transaction was done in respect of all the three units and in that case Alex Industries liability will be limited to that portion of those transactions which were ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, which was submitted after 9 months of the recording of statement. Once there is an admission by three persons and, other circumstantial evidence that cash transactions were there in respect of each month. Commissioner (Appeals) could not have ignored this amount and duty should have been demanded on the same. It may be stated that Revenue has also demanded enhancement of penalty on Shri Mudliar under Rule 209A on the ground that penalty of Rs. 1,000/- was too meagre in case of evasion of duty to the extent of Rs. 1,60,000/-. 9. We have considered the submission. 10. So far as maintainability of the appeal is concerned, we find that the respondents have not taken this plea before Commissioner (Appeals) nor in their Cross Objections. Clu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding such duress etc. is also required to be produced which has not been done. The respondents plea that the transfer of Rs. 25,00,000/- was towards all the three units is of no consequence as once Alex Industries has admitted duty liability on behalf of all the three units, there is no need of any such bifurcation when they themselves have not given any such bifurcation. In view of this we allow Revenue's appeal and set aside the order of Commissioner (Appeals). Looking into nature of offence penalty on Shri Mudaliar is increased to Rs. 15,000/-. 12. As regards Cross Objections the respondents have disputed the calculation of turnover, which they have not pressed at the time of hearing. Further the question of deduction of sales tax e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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