By TIOL News Service

AHMEDABAD, MAY 24, 2017: THE case concerns clubbing the clearance value of the three firms and one company operating from the same premises and denying the SSI exemption on the ground that there was a common entrance and exit as well as common land, building, plant and machinery, raw material, electricity, telephone, fax, office, office equipments etc. The CE duty demanded is Rs.22,06,067/-.

The demand was confirmed by the AA and the Commissioner(A) upheld the same.

By impugned order, Tribunal dismissed the appeals. However, penalties on some appellants were also reduced.

Later, a rectification application was filed by the main appellant by enclosing thereunder purported additional evidence to show that other firms were having their separate plant and machinery.

However, considering the fact that the documents which were placed before the Tribunal were placed for the first time in the Rectification application and were not even placed before the Commissioner (Appeals) and even before the lower authorities, the Tribunal rejected the said application for Rectification by observing that such evidence cannot be accepted before the Tribunal at belated stage.

Feeling aggrieved and dissatisfied with the impugned common order passed by the CESTAT dismissing the appeals as well as Rectification Application and confirming the O-in-O passed by the Adjudicating Authority upholding the CE duty demand and penalties, the appellants have preferred appeals before the Gujarat High Court.

After considering the submissions made, the High Court observed -

+ It is required to be noted that there are concurrent findings of fact recorded by all the authorities below that other firms / units were not having their own independent plant and machinery, electricity connection, raw material etc. There are concurrent findings of fact on record by all the authorities below that all the firms were / units were running in the same premises having a common entrance and exit. It has also been found that even one of the firm i.e. M/s. Hitech surrendered his registration under the Central Excise Act and was availed the benefit under the SSI exemption. That thereafter, having found that all other firms / units are dummy and, therefore, the adjudicating authority confirmed the demand of duty on clubbing of the clearances value of of other units / firms (which were found to be dummy) with that of the assessee. The order passed by the authorities below cannot be said to be contrary to evidence on record and / or finding recorded by the authorities below cannot be said to be perverse and therefore, no interference of this Court is called for.

As for the documents submitted and their non-consideration by the Tribunal while rejecting the rectification application, the High Court viewed -

++ It is required to be noted and it is not in dispute that no such documents / bills were produced either before the Adjudicating Authority or even before the Commissioner (Appeals). The same came to be produced for the first time before the learned Tribunal. Even the said documents were not produced at the time of search. Thus, the said documents were produced for the first time before the learned Tribunal at a belated stage. It is not the case on behalf of the assessee that those documents were not available and / or misplaced at the time of adjudication. The documents which were produced, were related to period of 1990 to 2001. The search was conducted in the year 2005 and even Order In Original came to be passed in the year 2008. No such documents were produced till then and as observed herein above the same came to be produced for the first time before the learned Tribunal, which can be said to be an afterthought and to get out of the findings recorded by the authorities below that other units / firms were not having their independent, separate plant and machineries.

The appeals were dismissed.

(See 2017-TIOL-983-HC-AHM-CX)