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TMI Blog2008 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of clearances of the two appellants is sustainable in the facts and circumstances of the case. However, the Order of the Commissioner confiscating land, building and machinery is set aside. On appeal by the appellants to the Bombay High Court, the Hon'ble High Court, vide Order dated 28-4-2005, set aside the Order of the Tribunal and remanded the matter to the Tribunal for fresh hearing in the light of the circulars and documents relied upon by the appellants and the following judgments of the Apex Court: (a) Supreme Washers Pvt. Ltd. v. C.C.E., Pune, reported in 2003 (151) E.L.T. 14 (S.C.); (b) Gajanan Fabrics Distributors v. C.C.E., Pune, reported in 1997 (92) E.L.T. 451 (S.C.); (c) Arca Controls Pot. Ltd. v. C.C.E. reported in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing material of M/s. Harnik Food Industries were stored. Both the units were having common office in respect of all the work of documentation. Both the units were using the same brand 'Harnik' belonging to M/s. Harnik Food Industries. One family of Hingorani was financially and administratively controlling both the units. There was total identity of interest between the two units. In 1989, M/s. Harnik Nutrients Pvt. Ltd. had labour problem and were closed down and Central Excise licence was surrendered in June, 1990. However, the unit restarted in January, 1991 with contract labour but failed to file the declaration during 1991-92 and 1992-93. The statements tendered by the employees in 1993 were retracted very belatedly in 1995, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the value of clearance of three units is to be clubbed for the purpose of Notification No. 175/86-C.E., as there is mutuality of interest, there being common management of three companies under one person, common procurement of raw material, common stock accounting and planning, common stock of raw material and semi-finished goods, common use of machinery between them and common marketing arrangement with free flow of finance between three units. However, since the applicability of the Board's Circular dated 29-5-1992 though raised yet was not considered, the matter was remanded to the Tribunal for this limited purpose. 6. Similarly in the case of Arca Controls Pvt. Ltd. the Hon'ble Supreme Court noted the finding of the Tribunal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmy unit, the duty could have been demanded only from M/s. Harnik Food Industries, being the de facto and de jure manufacturer and not from M/s. Harnik Nutrients Pvt. Ltd. We modify the Commissioner's order to this extent. 9. The ratio of the Supreme Court's judgment in the case of M/s. Rollatainers Ltd. will not apply to the facts of the present case, as in that case it was held, on the basis of the material on record, that there is no commonality between the two factories although situated within the same premises, whereas the evidence on record before us, as summarized above, shows that there is Financial flow-back and inter-linking of the two units. Further, the products seized from the premises of M/s. Harnik Nutrients Pvt. Ltd. bear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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