ELEMEC INDUSTRIES, SHREE Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN these six appeals arising out of a common Order, the issues involved are whether the value of clearances of all the units is to be clubbed for the purpose of levying and collecting Central Excise duty and whether penalties are impassable on all the Appellants.

(2.) SHRI C.S. Lodha, learned Advocate, mentioned that M/s. Elemec Industries, Appellant No.I, commenced the activity of carrying out turning and grinding operation on job work. as a partnership firm; that in 1982, they commenced manufacture of their own products, such as Magneto Assembly, dynamic balancing machines and its components and Ratchel Assembly; that they were availing the benefit of SSI exemption notification as they were registered as a small scale industrial unit with the Directorate or Industries with effect from 1975. He, further, mentioned that on 7.8.91, the Central Excise Officers carried out search of their factory premises as well as the factory premises of M/s. Shree Electricals, M/s. Anand Auto Electricals and M/s. Shree Stampings, Appellant No. 2, 3 and 4 respectively; that a show cause notice dated 2.6.1992 was issued alleging that the clearances of the Appellants Nos. 1 to 4 for the period from April, 1987 to March, 1982 were liable to be clubbed and that upon such clubbing all the four firms were ineligible for the benefit of the SSI exemption under Notification No. 175/86 -C.E., that the Notice demanded that following duty from the Appellants Nos. 1 to 4 as under:

(3.) THE learned Counsel Submitted that the Adjudicating Authority can not confirm the duty more than the duty demanded in the show cause notices; that by demanding duty in excess of amount demanded in the Notices, the Commissioner has traveled beyond the notices; that Appellant No. 1 can not be ordered to pay the duty which has been proposed to be recovered from Appellants Nos. 2 to 4; that notice dated 2.6.92 was issued invoking proviso to Section 11 A of the Act alleging suppression of facts which had not been upheld by the Collector in the Adjudication Order and against which no appeal was filed on the aspect of time limit. He contended that as no Appeals were preferred against Appellants Nos.2 and 4 against Adjudication Order dated 26.5.1993, the finding lf the Collector in favour of the said three firms to the effect that they were entitled to the S.S.I. exemption became final; that this being the case, the Commissioner could not have by the impugned Order considered and decided on the eligibility of these three firms to the S.S.I. exemption and he could not have held that these three firms were not eligible to the S.S.I. exemption; that accordingly the question of clubbing the clearances of the Appellant No. 1 with those of the three firms (Appellant Nos. 2 to 4 ) cannot be considered in isolation when the findings in favour of the said three firms have become final. He relied upon the decision in the case of CCE, Mumbai vs. Maganlal Nandlal and Sons, 1999 (113) ELT 597 (T) wherein the Department only filed one Appeal against only one firm and did not file the appeals against other firms, the Appellate Tribunal has dismissed the Appeal as clearances of all the three are proposed to be clubbed. Reliance has also been placed on the decision in the case of CCE, Mumbai vs. High Land Dye Works, final Order No. 412/2000 -C dated 21.7.2000 wherein the Tribunal rejected the Appeal filed by the Revenue in absence of any Appeal against other. Co -noticees. The learned Advocate also placed reliance on the following decisions: