V. Padmanbhan ORDER
V. Padmanbhan, Member (T)
1. These two appeals have been filed against order in original No. 17/2012 dated 23.11.2012 passed by the Commissioner of Central Excise, New Delhi. On 28.11.2009, the Central Excise officers carried out such operations simultaneously in the following premises.
• M/s. Anil Sales Corporation B-2406, Narela Industrial Area, Delhi;
• 14/21, Shakti Nagar, New Delhi, Residential premises of Sh. Pawan Kumar Jain, proprietor of M/s. Jain & Company;
• Office of M/s. Anil Sales Corporation at E-2/245, Shastri Nagar, Delhi 52;
• M/s. SUraj Transport Co. FC-II, Shop No. 29, E-Block, DSIDC Industrial Area, Narela, Delhi and;
• M/s. Shakti Industries , D-89, Peeragarhi Industrial Area, New Delhi. "
2. During search, relevant records were resumed including certain Kachi Parchis and delivery challans. Statements were recorded by the officers from connected persons of M/s. Anil Sales persons (ASC) as well as M/s. Jain & Co. (Jain) and also others. Upon completion of investigations, SCN dated 20.10.2011 Was issued proposing to (i) Club the value of clearances made in the name of ASC as well as Jain and to restrict the benefits in terms of SST Notifications No. 08/2013 dated 01.03.2003. (ii) Value of clearances made without accounting finished goods and clearing them clandestinely without payment of duty also to be included. (iii) In terms of the above Central Excise duty amounting to Rs. 1,58,42,752/- was demanded along with interest. Penalty of an equal amount was also proposed.
3. Upon completion of adjudicating proceedings, the Ld. Commissioner, vide the impugned order confirmed all the above proposals and also appropriated the amount of Rs. 10 Lakh voluntarily deposited by the appellant. Further a penalty of Rs. 10,000/- was imposed on M/s. Suraj Transport Co. accrued by the impugned order, the present appeal has been filed.
4. With the above background, we heard Sh. Naveen Mullick, Ld. Advocate representing both these applicants. Revenue was represented by Sh. Suchitra Sharma, Ld. DR.
5. The Ld. Advocate arguing the case of the appellant mainly emphasized to the following points in appeal:
"(a) Clubbing of the clearances of ASC with Jain is not justified inasmuch as both units which situated in totally separate premises, each unit has its own plant and machinery as well as separate workers. Both firms have independent legal existence and have separate registrations for sales tax and file independent income tax returns. The raw material for both firms are procured separately and clearances are made separately.
(b) ASC who is proprietor of M/s. Jain was being helped by Mr. Pawan Jain in carrying out the activities. The accounts were also being maintained by the same accountant Mr. Vijay Jain. On this basis, it cannot be concluded that ASC is a dummy unit of Jain.
(c) The only evidences cited by Revenue is that as it was Acid Wash belonging to Jain was being carried out in the premises of ASC without charge and no rent was paid by ASC to Mr. Jain for his office premises owned by him. These do not indicate that ASC is a dummy unit of Jain.
(d) The charge of clandestine clearance has been made against ASC as well as Jain on the basis of several inculpatory statements given by employees of both firms as well as those given by Mr. Pawan Jain as well as Mrs. Jain. However, more struck the statement passed on which the Revenue's case has been built by Mr. Pawan Jain after his arrest. The Hon'ble ACMM has severely critici........