Custom, Excise & Service Tax Tribunal
Jankesh Paper Products Pvt.Ltd. vs C.C.E. Delhi Iv on 17 December, 2019
1 E/2412-2415/2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
~~~~~
REGIONAL BENCH - COURT NO. 1
Excise Appeal No. 2412 Of 2011
[Arising out of OIO No. 11/DM/ADJN/2011-12 dated 12.07.2011 passed by the
Commissioner of Central Excise, Faridabad Haryana]
M/s Progressive Fibre Containers Pvt. Ltd.
(Earlier Progressive Packing Industries) : Appellant (s)
5CP/8, NH-5, RAILWAY ROAD, FARIDABAD. (HARYANA)
Vs
CCE-Delhi-IV : Respondent (s)
New CGO Complex, NH-IV, Faridabad, Haryana 121001 WITH Excise Appeal No. 2413-2415 Of 2011 [Arising out of OIO No. 11/DM/ADJN/2011-12 dated 12.07.2011 passed by the Commissioner of Central Excise, Faridabad Haryana] SHRI NAVEEN GARODIA, DIRECTOR OF : Appellant (s) M/S JANKESH PAPER PRODUCTS PVT. LTD.
PLOT NO. 37, SECTOR-27A, FARIDABAD. (HARYANA) SHRI SUSHIL GARODIA, DIRECTOR OF M/S PROGRESSIVE FIBRE CONTAINERS PVT. LTD.
(EARLIER M/S PROGRESSIVE PACKAGING INDUSTRIES), 5CP/8, NH-5, RAILWAY ROAD, FARIDABAD. (HARYANA) JANKESH PAPER PRODUCTS PVT.LTD.
PLOT NO. 37, SECTOR-27A, FARIDABAD. (HARYANA) Vs CCE-Delhi-IV : Respondent (s)
New CGO Complex, NH-IV, Faridabad, Haryana 121001 APPEARANCE:
Shri Surjeet Bhadu Advocate for the Appellant Shri Rajeev Gupta, Shri Vijay Gupta, ARs for the Respondent CORAM : HON'BLE Mr. ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE Mr. P.V.SUBBA RAO, MEMBER (TECHNICAL) ORDER No.A/61183-61186 / 2019 Date of Hearing:17.12.2019 Date of Decision:17.12.2019
2 E/2412-2415/2011 Per : Ashok Jindal The appellants are in appeal against the impugned order which is as under:-
The Show Cause Notice culminated into Order in Original dated 12.07.2011 vide which the Adjudicating Authority held as under: -
i) I order that the clearances of M/s PPI and M/s JPPL be clubbed for the purpose of determining the aggregate value of clearances in terms of Notification No. 8/2003-CE dated 1.3.2003 as amended for the period 2005-06 to 2009-10 (upto February, 2010), since both the units have mutuality of interest.
ii) I hold that extended period under proviso to Section 11A(1) of the Central Excise Act, 1944 is invokable for demanding Central Excise duty from them.
iii) I hold that M/s JPPL being an extended arm of M/s PPI, was created on papers in order to avail the benefit of SSI exemptions and thus it is a dummy unit of M/s PPI.
iv) I confirm and order recovery of demand of Central Excise duty of Rs. 61,44,952/- (BED Rs. 59,90,792/- + Education Cess Rs.
1,19,816/- + S.H.E. Cess Rs. 34,344/-) for the period 2005-06 to 2009-10 (Upto February 2010) against M/s PPI under the proviso to Section 11A (1) of Central Excise Act, 1944. Amount of Rs. 5,00,000/- already deposited by the party vide entry No. 11 dated 21.7.2009, is appropriated against the duty demand confirmed above.
v) I also confirm interest demand on the duty not paid which may be recovered under Section 11AB of the Central Excise Act, 1944.
vi) I impose a penalty of Rs. 61,44,952/- upon M/s PPI, Faridabad under Section 11AC of the Central Excise Act, 1944. Penalty payable under Section 11AC shall be reduced to twenty five percent of the amount of duty so determined, if the amount of duty along with interest under Section 11AB is deposited by M/s PPI within thirty day of the receipt of this order provided further that amount of reduced penalty is also deposited by M/s PPI within thirty days of the receipt of this order.
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vii) I also impose a penalty of Rs. 10 lakhs (Rupees Ten Lakhs only) upon Shri Sushil Garodia, Director of M/s PPI under Rule 26(1) of the Central Excise Rules, 2004.
viii) I also impose a penalty of Rs. 10 lakhs (Rupees Ten Lakhs only) only upon Shir Naveen Garodia, Diretor, JPPL under Rule 26(1) of the Central Excise Rules, 2002.
2. The facts of the case are as follows:-
(i) That the appellant M/s Progressive Fibre Containers Pvt. Ltd.
(PPI as referred in Show Cause Notice) was engaged in manufacture of corrugated boxes and were registered under Central Excise. The factory of the appellant was established in year 1972. From the establishment uptill 01.04.2009, the appellant's constitution was a proprietorship concern owned by Shri J.L. Garodia. The constitution of appellant was changed to a private limited company w.e.f. 01.04.2009.
(ii) Another company by the name of M/s Jankesh Paper Products Pvt. Ltd. (referred to as JPPL in Show Cause Notice) located at Plot No. 37, Sector 27-A, Faridabad was also engaged in manufacture of corrugated boxes. M/s JPPL was set up in July, 1989 when there was no Central Excise duty on the corrugated boxes. Since the turnover of JPPL did not exceed exemption limit of Rs. 1.5 crores, they were availing small scale exemption under Notification No. 8/2003-CE dated 01.03.2003. Accordingly, they did not obtained Central Excise registration and were not paying Central Excise duty on goods manufactured and cleared by them.
(iii) Acting on an information that the appellant are clearing their goods from their another unit M/s JPPL without payment of 4 E/2412-2415/2011 Central Excise duty, the officers of Central Excise department conducted searches at various premises on 15.07.2019 including the factory of M/s JPPL, premises of appellant. During the visit, huge number of records were resumed from the premises of the appellant as well as M/s JPPL. It was noticed that the records relating to production and clearance were not being maintained by M/s JPPL at their premises. During the visit by Central Excise Officers, it was recorded that M/s JPPL was a proper factory having machinery to manufacture corrugated boxes and the finished goods i.e. corrugated boxes valued at Rs. 2,35,220/- were also detained by the visiting staff. Various statements of the employees of JPPL and appellant were recorded during the investigation. It was noticed in the investigation that both the companies were owned by family of two sons of Mr. J.L. Garodia i.e. Shri Sushil Garodia and Shri Ramesh Garodia (since deceased).
(iv) On the basis of investigation a Show Cause Notice dated 26.04.2010 was issued to the appellant and M/s JPPL jointly and separately proposing to club the clearances of the appellant and M/s JPPL for determining the aggregate value of clearances under Notification No. 8/2003. It was proposed to demand Central Excise duty amounting to Rs. 59,90,792/- from both the companies calculated on the value of clearances of finished goods done by M/s JPPL for the period 2005-06 to February 2010 by alleging that M/s JPPL was not entitled to SSI exemption. The Show Cause Notice also proposed for imposition 5 E/2412-2415/2011 of penalties upon the appellant as well as JPPL and also against directors of appellant and JPPL.
(v) The main allegation in the Show Cause Notice is that the share holders / directors of both the companies are from the same family although there are no common directors. There has been frequent unsecured loans advanced by the family members to both the units which was actually meant for financing the units in garb of advancing loans. It was also alleged that the day book titled as SUS maintained in premises of appellant shown payment of multiple miscellaneous expenses on account of casual salary and wages of workers of both the companies and maintenance of buildings of both the companies etc. Also some of the records of M/s JPPL were also found lying in the premises of the appellant and similarly certain gate passes of appellant were found lying in the premises of M/s JPPL. In view of these allegations it was alleged that appellant and M/s JPPL are being actually managed by Shri Sushil Garodia as he is real owner of both the units and thus, the appellant and JPPL are single units. In the Show Cause Notice, the existence of two separate private limited companies was not disputed and also it was nowhere alleged that the JPPL was a dummy unit.
The adjudication took place and the impugned order is mentioned in Paragraph 1 herein above was passed. Against the said order, the appellants are before us.
3. The Ld. Counsel for the appellant submits that the clubbing of clearances of M/s JPPL with the appellant is wrong in law and on facts, therefore, the same is liable to be set aside. The Order in Original has 6 E/2412-2415/2011 travelled beyond Show Cause Notice by holidng M/s JPPL as a dummy unit without any basis because there was no allegation in the Show Cause Notice that M/s JPPL is a dummy unit.
(i) The demand has been raised solely on the ground that M/s JPPL is actually another unit of the appellant and has been created to evade the Central Excise duty.
(ii) It is submitted that following facts are not disputed in the present case.
a) M/s JPPL and appellant are two separate private limited companies having separate legal existence.
b) That the premises of M/s JPPL is located at a distance of 5 kms from the factory of the appellant.
c) That the M/s JPPL has its own machinery to manufacture the final product.
d) M/s JPPL has 30 workers and three office staff for carrying on the manufacturing activity.
e) The JPPL has separately purchased raw material made sales and received sale proceeds in their own bank account.
f) M/s JPPL was established in July 1989 g) The JPPL was separately registered with Sales Tax Department
on 17.05.1996 and also got registered as small scale industry on 03.08.1992.
h) When JPPL was established, there was no duty on corrugated boxes and the duty came in year 2001-02, thus, it could not have been established to evade payment of duty.
i) JPPL filed declarations to Central Excise department on 05.05.1992, 18.03.1994 and 18.08.1994. a further declaration 7 E/2412-2415/2011 was filed on 16.04.2001 regarding information that there turnover was less than SSI limit. In year 1992, the factory of the JPPL was visited for verification by Central Excise department.
j) M/s JPPL has separate PAN No. and it files separate Income Tax Returns by showing its income from sale of final products.
k) The JPPL is also registered separately under Factories Act.
l) M/s JPPL is independently registered with Registrar of Companies and is filing its return under Companies Act. Also separate balance sheets are prepared as per the Companies Act.
(iii) That the above mentioned irrefuted facts clearly shows that the JPPL and the appellant has separate existence and legal identities which are not disputed by the Central Excise department. In such a case, it cannot be said that M/s JPPL and appellant are one unit.
(iv) That the main basis of clubbing the clerances is certain unsecured loans advanced by family members of Shri Sushil Garodia to the appellant as well as M/s JPPL. In this regard, it is submitted that firstly, the unsecured loans were duly recorded in books of accounts of both the companies as per the norms of Companies Act as well as Income Tax Act and the said loans were returned alongwith interest which is specifically admitted in the Show Cause Notice. Therefore, the same cannot be treated as funding. Secondly, there is no loan advanced by M/s JPPL to the appellant or vice a versa, therefore, there is no direct loans between two companies. Thirdly, it is settled law that mere advancing loans are not sufficient to club the clearances (Gaziabad Organics Ltd. Vs. CCE, 2016 (344) ELT 965).
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(v) Further, it is alleged that the family members of Shri SuhilGarodia are managing both the companies being directors. In this regard, it is submitted that having common directors or family members as directors in two companies is no basis to club the clearances of two legally separate entities (Gaziabad Organics Ltd. Vs. CCE, 2016 (344) ELT 965).
(vi) It is also alleged that certain expenses were being made from one place for both the companies. In this regard, it is submitted that while filing the reply, the appellant duly clarified that petty daily expenses were being made, although from one place, however, the same were separately identifiable from the casual record and the same were properly entered in the books of accounts of respective company from time to time. To prove the same, the appellant placed on record respective ledgers of appellant and M/s JPPL alongwith balance sheets and also placed on record certificate of Chartered Accountant (Pg. 285). This fact has neither been disputed in the Order in Original nor the same is rebutted. Merely, temporary recording of petty expenses cannot be made basis of clubbing especially in absence of any evidence of financial flow back and mutuality of interest.
(vii) That it is not the case of the department that the JPPL did not have any infrastructure or machinery to manufacture the final product. Infact, it is specifically admitted that the JPPL had machinery and was manufacturing final product in their factory. In such a case, the JPPL cannot be treated as dummy unit (CCE Vs. Jagatjit Agro Industries, 2014 (309) ELT 301 AND CCE Vs. Saron Mechanical Works, 2016 (332) ELT 80 (P&H)).
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(viii) That since both the companies are separate legal entities and are registered with various statutory authorities separately, the unit cannot be treated as one and the clearances cannot be clubbed. [M/s D.S. Doors (I) Ltd. Vs. CCE Final Order No. 62829-62831/2018 dated 28.08.2018 AND Nova Industries (P) Ltd. Vs. CCE, 2015 (327) ELT
103.]
(ix) That the finding regarding declaring JPPL as dummy unit is erroneous and without any basis. It is not disputed that JPPL was established in 1989 and since then it is continuing its manufacturing operations. The duty on corrugated boxes came in year 2001-02. In such a case, when there was no duty on final product it cannot be said that JPPL was established to evade the payment of duty.
(x) That the effect of clubbing of clearance of two separate private limited companies does not stop at Central Excise level only. The Ministry of Corporate Affairs, authorities under Factories Act, the Income Tax department etc. has treated the two companies as separate entities and have assessed them separately. The Adjudicating Authority could not have passed any order in derogation of such assessments and upsetting the entire scheme.
(xi) That it is not the case of department that the JPPL has engaged into clandestine clearances and no duty has been demanded from M/s JPPL. Even, the Adjudicating Authority has not imposed any penalty on M/s JPPL. In such a case, the appellant cannot be burdened with duty liability of clearances made by M/s JPPL even if the SSI exemption is denied to M/s JPPL.
10 E/2412-2415/2011 In view of the above, it is prayed that impugned order may kindly be set aside by dropping the demand of duty as well as penalties on the appellants.
4. The Ld. AR reiterated the findings of the impugned order.
5. Heard the parties and considered the submissions.
6. On hearing the parties, we find that the sole reason for clubbing the clearances of JPPL with PPI only that there were some financial transactions and there are controlled by family member and there are some records were found in each other factory premises.
7. We find that during the course of visit, the machinery for manufacture of finished goods was found installed in the premises of JPPL. Moreover, some stocks on finished goods were also lying there and it is not denied by the Revenue that these two units are not separate units. In fact, both the units are located at a distance of 5 KM. from each other and having any manufacturing infrastructure separately installed in their premises. Merely, both the units are owned by the family members cannot be the reason for clubbing the clearances.
8. Moreover, it was not alleged in the show cause notice that JPPL is a dummy unit. Further, the directors of both the units are not common and initially PPI was a proprietorship concern and JPPL is a private limited company. The private limited company is distinct from an individual, therefore, it cannot be said both are same units. In the absence of any corroborative evidence on record, the clearances cannot be clubbed.
9. The other ground for clubbing the clearances is that there are some financial transactions between each unit. We have gone 11 E/2412-2415/2011 through the financial transactions also, we find that the individuals have given money on loan to the units and if other unit is required money, the same is returned by the other unit to the individual who further give the loan to that unit and on all the transactions interest has been paid. In these circumstances, we cannot say that there was flow of funds between the both units and these types of transactions cannot be the reason for clubbing the clearances.
10. Moreover, another allegation is that both units are managed by the family members or one person, the same cannot be the reason to club the clearances.
11. A similar issue has been examined by this Tribunal in the case of Nova Industries (P) Ltd. vs. CCE-Chd 2015 (327) ELT 103 (Tri.- Del.) wherein this Tribunal has observed as under:-
"14. We find that in this case demands have been confirmed against the appellants on two accounts:
(a) by clubbing the sales of M/s. DSA in the account of M/s. NOVA and
(b) Goods have been removed clandestinely without payment of duty.
15. First, we will deal with the issue whether the clearance of M/s. DSA can be clubbed with the clearance of M/s. NOVA. In the impugned order, the allegation against the appellant is that both the companies were promoted by Shri D.V. Khanna himself as Managing Director of both the companies and Director in both the companies are same. It is also found that by the Adjudicating Authority, the salesman/dealers to be decided mutually and marketing of both the companies were commonly and salary of employee of M/s. Nova was paid from M/s. DSA and commission of employees of M/s. NOVA was paid from M/s. DSA's account. The annual incentives were given to the dealers on the basis of combined sales of both the units. Moreover, the shareholding in both the units by the Directors is almost common. Sometimes, money was given to each other but nothing was shown in the balance sheet. Therefore, clearance of both the units are to be clubbed as the same are managed by Shri D.V. Khanna, Managing Director in the clearance of NOVA.
16. We also find that in this case, both the units are private limited and registered with the Registrar of Companies and both the units are having their units separately located with a distance in some industrial area but there is no common gate for both the companies. Further, both the companies are 12 E/2412-2415/2011 registered with Income-tax Department, Sales-tax Department, Central Excise Department, Director of Industries, etc. as separate units. The registration of Central Excise was granted to both the units although the documents were signed by Shri D.V. Khanna for filing returns or correspondence with the department but they were never objected to. We also find that in this case although both the companies are having different brand names of their product such as NOVA/DSA. The units are having their own separate machinery having manufacturing the goods and same have been cleared on payment of duty by availing SSI exemption of both the units separately. The only allegation is that sometimes, salary of one of the employees was paid by the other firm or they are managed by one person. Moreover, the dealers get the commission on the combined sales of both the companies. These things cannot constitute that there was a mutuality of interest and therefore, clearances of one unit cannot be clubbed with the clearance of other unit.
17. We find that this issues has come before the Tribunal in various cases whereas in the case of Bullows India Pvt. Ltd. v. CCE, reported in 2012 (284) E.L.T. 584 (T) (supra) wherein this Tribunal has observed as under:
"We find that in the present case the issue is whether the appellants are entitled for the benefit of Notification 175/86-C.E. and subsequently Notification 1/93-C.E., therefore, the ratio of the above decision of the Hon'ble Gujarat High Court is fully applicable on the facts of the present case. The Hon'ble High Court held that the Revenue has to establish that there was mutuality of interest or financial flowback of the funds and in such cases the clearances of the holding and subsidiary private limited companies can be clubbed. In the present case we find that even in the show cause notice there were no such allegations. In the show cause notice the only allegation is that the holding company has share capital in the subsidiary company. There is no evidence regarding financial flowback on record. In these circumstances and respectfully following the decision of the Hon'ble Gujarat High Court, the impugned order is set aside and the appeals are allowed. The cross objections filed by the Revenue are disposed off accordingly."
18. Further, we find that, in the case of CCE v. Sharad Industries reported in 2013 (294) E.L.T. 561 (T) this Tribunal again observed as under:
"We, after appreciating the submissions of both the sides find that there is not much dispute on factual position. It is not the Revenue's case that two units owned by Smt. Kamlesh Gupta and her husband Shri Avdesh Kumar Gupta not complete units having all the necessary machines and infrastructure for manufacture of their final product. Both the units have separate Sales Tax Registration, Industries Registration, Income Tax Registration, Electricity Connection, Telephone Connection & ESI Registration etc. Merely because there is a door between the two units and power of attorney stand given to her husband to look after the job of her unit, by itself cannot be held to be a ground for holding both the units as one. Admittedly, husband and wife are entitled to their own business and if the husband is looking after the business of the wife that will not make the unit owned by the wife as a dummy unit. The prime requirement, for clubbing the clearance of two units is not having complete independent machinery and infrastructure to manufacture the goods. If both the units 13 E/2412-2415/2011 are complete by itself, capable of manufacturing the goods without any help from the other unit, it has to be held that both the units are independent units. The various decisions of the Tribunal referred to and relied upon by Commissioner (Appeals) in his impugned order are applicable to the facts of the present case. It stands held in precedent decision that financial flow back and financial intertwining between the two units is the main reasons for reflecting upon the fact of their being independent or not. One such reference can be made to in decision of the Hon'ble High Court in the case of M/s. Renu Tandon v. Union of India - 1993 (66) E.L.T. 375 (Raj.). Similarly, in the case of M/s. Electro Mechanical Engg. Corporation v. CCE, Jaipur - 2003 (152) E.L.T. 194 (Tri.), Girish Electricals Industries v. CCE, Mumbai - 2004 (167) E.L.T. 299 (Tri.) it was held evidence of common office premises, common staff and common maintenance of records, etc. cannot be held to be sufficient to club the clearances of the units, who have different registration in all the departments and in the absence of any financial flow back".
19. We further, analyse the decision of Ennar Cements Pvt. Ltd v. CCE reported in 2013 (292) E.L.T. 245 (T) (supra) wherein this Tribunal has observed as under :
"We have gone through the records of the case carefully. The appellants are two Private Limited Companies. They have separate existence. The investigation reveals that the clearances of one unit were done with the other and vice versa in order to remain with the exempted limit and thereby evading payment of Central Excise duty. If that is the case, the investigation ought to have decided the real clearances of each unit and demanded the duty accordingly in respect of each unit. However, in the present case, the duty has been demanded collectively from both the units. If the Department feels that out of the two units, one unit is dummy, then the dummy unit should have been identified. In that case, the value of the clearance of dummy unit could have been clubbed with the clearance of the real unit and duty demanded. This has not been done.
The learned Commissioner in the impugned order has given the following findings : -
"70 (ii) Whether each unit is entitled to a separate limit (under the SSI exemption notification) as per the Board's Circular No. 6/1992, dated 29-5- 1992.
I have perused the Circular No. 6/1992, dated 29-5-1992 [issued from F. No. 213/15/92-CX-6] issued by the Central Board of Excise and Customs, New Delhi in the context of SSI exemption Notification No. 175/86-C.E., dated 1- 3-1986. In the said Circular, the board had, inter alia, clarified that the limited companies, whether public or private, are separate entities distinct from the shareholders composing it and hence, each limited company is a manufacturer by itself and would be entitled to a separate exemption limit. It is not in dispute that M/s. Ennar Cements and M/s. Seshashaila Cements are private limited companies registered separately under the Companies Act and each of them have separate factories. Taking various facts into account I have already held in my findings on (i) above that the management [of both the units] is one and the same and both the units are not independent to each other, thereby they are to be treated as a single 14 E/2412-2415/2011 manufacturer having more than one factory. Hence, the clarifications given by the Board in the said Circular dated 29-5-1992 are not applicable to the facts of the present case."
On perusal of the above findings of the learned Commissioner, it is clearly stated that each appellant's company is separate. In respect of the Board's Circular, the clearances of the limited companies cannot be clubbed. The Commissioner has clubbed it and demanded duty collectively. This is not legal and correct and it is contrary to the Board's Circular."
20. We further find that in the case of Alpha Toyo Ltd. v. CCE, New Delhi reported in 1994 (71) E.L.T. 689 (Tribunal) this Tribunal has observed as under :
SSI exemption - Clubbing of clearances common Managerial Control, a few common directors and advancing of interest free loans by main unit to other units not sufficient to make other units as dummies when they are having independent control or money flow back to the main unit - Clearances not clubbable - Situation not to be confused with that of related person concept under Section 4(4)(c) of Central Excises & Salt Act, 1944 - Notification No. 175/86-C.E., dated 1-3-1986 - Section 5A ibid.
21. In the case of Renu Tandon v. Union of India reported in 1993 (66) E.L.T. 375 (Raj.) Exemption - SSI Exemption - Clubbing of clearances - Two units situated at same premises, manufacturing similar product, having some common management, office and labour and common electric connection - One unit owned by father-in- law and the other by daughter-in-law and work of both units looked after by her husband - In absence of evidence of common finding and financial flow back, two units not treatable as one and their clearances not clubbable - Notification No. 175/86-C.E. dated 1-3-1986.
22. In the case of Vivomed Labs. (P) Ltd. v. Collector of C. Ex. reported in 1991 (53) E.L.T. 152 (Tribunal) Exemption to SSI Units - Clubbing of clearances - Units registered separately under Income-tax Act, Sales Tax having separate Central Excise Licenses and also financed through separate application for loan from financial institutions - Shareholders in all the firms not the same group of persons - Tie up with Medly Pharmaceuticals for marketing purposes explained inasmuch as the services rendered being paid for in terms of agreement between them - Clubbing of clearances of units not justified in absence of conclusive evidence of financial flow back among them - Notification No. 83/83, dated 1-3-1983, No. 85/85, dated 17-3-1985 and No. 175/86, dated 1-3-1986.
23. We also find that the activity of the appellants were in the knowledge of the department as they were registered with the Central Excise Department and units are located in the same range, therefore, extended period of limitation is also not invokable for clubbing the clearance of DSA with NOVA.
24. From the analysis of the above decisions and the facts of the case before us, we find that both the units are separately located having separate registrations and dealing separately. We also find that there is no financial flow 15 E/2412-2415/2011 back, therefore, there is no mutuality of interest between the units. Accordingly, clearances of both the units cannot be clubbed together.
25. In these circumstances, the charge of clubbing of the clearance of M/s. DSA with M/s. NOVA is not sustainable and the same is set aside."
12. In view of the above discussions and observations, we hold that the clearances of both the units cannot be clubbed together and M/s JPPL is entitled for benefit of SSI exemption Notification No. 08/2003- CE dated 01.03.2003. Accordingly, the impugned demands are not sustainable, hence, the impugned order is set-aside.
11. In result, the appeals are allowed with consequential relief, if any.
(Operative part of the order pronounced in the Court) (ASHOK JINDAL) MEMBER (JUDICIAL) (P.V.SUBBA RAO) MEMBER (TECHNICAL) G.Y.