Document Fragment View

Matching Fragments

14. Learned Authorized Representative (AR) reiterated the finding in the impugned order and submits that M/s. Lancy Constructions and M/s. Lanwal Block were two partnership firms with the same set of parters viz., Shri Lancy Mascarenhas and his wife Smt. Jascinta Mascarenhas. The total value of clearance of the two units during 2009-10 was Rs.1,39,07,554/-. As per the exemption scheme for small scale industries under notification No. 8/2003-CE dt 01.03.2003, unit is liable to pay Central Excise duty on crossing threshold exemption limit of Rs.1.5 crores and when the total value of clearances of excisable goods for home consumption exceeds Rs 4 crores during the previous year, they are not eligible to avail exemption under the said notification. In order to avoid crossing of threshold exemption limit and payment of duty, from 2010- 2011 onwards, M/s Lancy Constructions has created a web of units by re- constituting the existing partnership firm i.e., M/s Lanwal Blocks and also setting up of partnership and proprietary firms, i.e. M/s LCN Enterprises, M/s Neleema Enterprises and M/s Jasmine Enterprises among the family members with the available infrastructure i.e. land and machinery. A web of that shadow unit was created by M/s Lancy Constructions, to suppress /hide their actual clearance value, by artificially fragmenting/splitting the manufacturing units so as to keep the clearance values of each entity, within the exemption limit (i.e. Rs.1.5 crores) in a financial year to evade payment of appropriate central excise duty. Further submits that through Shri. Arun G Pinto has stated that daily wage labourers are hired by each Excise Appeal Nos. E/21142,21143,21145, 21147,21148/2017 of the three units. However, himself, Shri Jason Fernades (Plant Manager), Shri. Hithakshi and Office Assistant are common for all the three units, which are operating from plots 309, 312 and 313. Shri. B. Mohandas Shenoy has stated that he is in-charge of production activities for all the four units, which are operating from the plots 154-C and 159- B and no separate employees are available for each unit and all the employees are made to work in all units depending on the orders, including himself. Shri Wilfred Miranda, Accountant working in administrative office has stated that he is the Accountant of M/s. Lancy Constructions and their group firms and that he is looking after the day- to-day business and financial accounts of M/s Lancy Constructions and group firms as per the directions of Shri Lancy Mascarenhas. Verification of documents reveal that Bills and invoices issued at M/s. LCN Enterprises and M/s. Jasmine Enterprises and also delivery notes were issued/signed by one individual (namely, Shri Hithakshi) at factory site, at plot No. 309, 312 and 313.Sample copies are also provided as relied upon documents. Further Shri Mohan Shenoy, production manager had given a statement that all the workers/employees are working in all the units depending on the orders as there are no separate employees for each unit, Shri Lancy Mascarenhas, Managing Partner, M/s Lancy Constructions in his statement dated 19.06.2015 stated that depending on the work, the units were sharing the workers and payment was made accordingly. Thus though separate Registers of Employment Muster Rolls were maintained, all the workers/employees were working in all the units of the group depending on the orders. Therefore, it is clear from the above facts that all the units has common management operating from either plots Nos. 309,312 and 313 or plot Nos. 154-C and 159-B which were in possession of the family with same set of machineries and with common employees/workers. As regarding reliance of the appellant in the decisions referred in the matter of Associated Engineering Products (supra) and Mayur Printers (supra), on free flow of finance among the units, Learned AR submits that there is free flow of money both in cash and in kind in this case. M/s Lancy Constructions had extended loans to other group companies. In his statement dated 19.06.2015, Shri Lancy Excise Appeal Nos. E/21142,21143,21145, 21147,21148/2017 Mascarenhas, Managing Partner, M/s Lancy Constructions has inter alia stated that since the other firms did not have any assets, they could not get bank loans and therefore M/s Lancy Constructions advanced loans to other firms as and when required by charging interest of 12% per annum. However, as mentioned in the show cause notice / impugned order no entries are forthcoming regarding repayment of loans in the balance sheet. Similarly, though it is claimed that premises had been leased out to M/s Jasmine Enterprises and M/s. LCN Enterprises, no evidence is forth coming regarding receipt of rent by M/s Lancy Constructions. Similarly, M/s Neleema Enterprises was carrying out the manufacturing activity at plot No. 159B without any lease agreement. Rent for the said plot was paid by M/s Lancy Constructions. Further, plot No.154-C was owned by M/s Lanwal Blocks as per Sale deed dated 21.11.2003 and from the facts of the case, Adjudication Authority held that M/s Lancy Constructions Block and interlock unit was also operating at the said premises without any lease agreement and without payment of rent. Further draw our attention to the statement dated 06.03.2015 of Shri Lancy Mascarenhas, Managing Partner, M/s Lancy Constructions stated that M/s. Lancy Construction Interlock and Block units were located in plot Nos.309, 311 and 312 of Baikampady Industrial Area. However, certain machineries belonging to Lancy Construction were given on hire to M/s Lanwal Block at plot No. 154-C and M/s Neleema Enterprises. M/s Lancy Constructions was buying final products, i.e. blocks/interlocks from M/s Lanwal Blocks for the construction purposes. M/s Lancy Constructions provided loan to the other units as per their necessity and charged interest on the same. Ready Mix Concrete is an input for manufacture of blocks and interlocks for the units situated in Plot Nos 159-B and 154-C, viz., (i) M/s Lanwal Blocks (ii) M/s Lancy Constructions Blocks and Interlock Units and (iii) M/s. Neleema Enterprises. As per the delivery notes raised, M/s Lancy Constructions (RMC Unit) is transferring RMC to M/s Lancy Constructions / M/s Neleema Enterprises. It is clearly mentioned in the Delivery Note as Not for Sale; 'Our Own Site'. Further M/s Lancy Constructions Block Unit/ Interlock unit and M/s Lanwal Blocks are operating from Plot Nos. 154-C and 159-B and are adjacent plots having common passage. It is Excise Appeal Nos. E/21142,21143,21145, 21147,21148/2017 thus evident that M/s. Lancy Constructions (RMC Unit), owned by M/s. Lancy Constructions, has cleared RMC to their own sites (154-C and 159- B) without any sale document/Invoices. Further submits that Shri. Arun G Pinto, plant In-charge of M/s Lancy Constructions at Plot No. 309, 312 and 313 in his statement dated 10.12.2013 stated that Ready Mix Concrete (RMC) manufactured by M/s Lancy Constructions, RMC Unit was being used by M/s Jasmine Enterprises and there were no documents for clearance of RMC to M/s Jasmine Enterprises. Verification of the seized records reveals that there are clearances of large quantity of RMC by M/s. Lancy Constructions, R.M.C. Unit to M/s. Lancy Constructions and M/s. Neleema Enterprises, with purpose of transport marked as 'not for sale, our own site. However, Shri Lancy Mascarenhas, Managing Partner, M/s Lancy Constructions in his statement dated 19.06.2015 stated inter alia that they had not supplied any RMC to M/s Jasmine Enterprises. He further stated that they were only mixing the materials like cement, jelly supplied by Neelma Enterprises in their plant and supplying to them; that they were charging only mixing charges; that Neelma Enterprises has a common yard to store raw materials at M/s Lancy Consructions RMC Unit located at plot No.309,312 and 313 and they have no documentary evidence for transfer of materials. Therefore, in the facts and circumstances of the case, the Adjudication Authority rightly held that M/s. Lancy Constructions (RMC Unit), owned by M/s. Lancy Constructions, have cleared RMC to their own sites viz M/s Lancy Constructions, M/s Neleema Enterprises and M/s Jasmine Enterprises without any sale document/invoices and impugned order confirming the demand and penalties imposed on appellants are sustainable.