SYMPHONY COMFORT SYSTEMS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE petitions arise out of a common order of Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal', for short) dated 11 -9 -2012 ( : 2013 (288) E.L.T. 457 (Tri. -Ahmd.)). Petitioner of Special Civil Application Nos. 16100/2012, 16101/2012, 16102/2012, 16103/2012 and 16104/2012 is a Company registered under the Companies Act, 1956 and is engaged in activity of selling and exporting air -coolers under the brand name 'Symphony'. Petitioner of Special Civil Application No. 16230/2012 is a Company called M/s. Polyset Plastics Private Limited and is engaged in the activity of manufacturing and moulding of various articles of plastic. Symphony Limited used to make purchases of air -coolers manufactured by M/s. Polyset Plastics Private Limited and few other similar manufacturers. Excise Department carried out investigation into the allegations of large scale excise evasion by such companies. Culmination of such investigation resulted into issuance of different show cause notices to the Symphony Limited and other similarly situated manufacturers. Such notices were issued in or around February, 2010. It was alleged that the said entities had evaded excise duties worth Crores of rupees through a complex design. It is at this stage not necessary to go into the precise details of allegations against the respective parties. Suffice to record that the adjudicating authority i.e. Commissioner of Central Excise, Vadodara passed his order -in -original pursuant to such show cause notice on 21 -4 -2011. In addition to confiscation of the seized material, he confirmed a duty demand of Rs. 3,09,39,616/ - from M/s. Polyset Plastics Private Limited. He ordered recovery of such sum with interest as provided under Section of the Central Excise Act, 1944. He further imposed a penalty of matching sum on M/s. Polyset Plastics Private Limited under Section of the Central Excise Act, 1944. He imposed a further penalty of Rs. 65 Lacs under Rule 26 of the Central Excise Rules, 2002 on the said Company. He also imposed a penalty of Rs. 65 Lacs under Rule 26 of the Central Excise Rules, 2002 on Symphony Limited. Such order came to be challenged by Symphony Limited as well as M/s. Polyset Plastics Private Limited before the Tribunal. Pending such appeals, the appellants also prayed for stay of the execution of the Commissioner's order and waiver of pre -deposit to enable them to argue their appeals before the Tribunal on merits. On such applications, the Tribunal passed common impugned order dated 11 -9 -2012, which has given rise to separate petitions by Symphony Limited and M/s. Polyset Plastics Private Limited. Insofar as Symphony Limited is concerned, the Tribunal insisted on the Company depositing amount equal to 20% of the penalty imposed on the Company. With respect to M/s. Polyset Plastics Private Limited, the Tribunal required such Company to deposit 10% of the duty demanded. Both the companies were given eight weeks time to do so.

(2.) SINCE Symphony Limited was facing multiple show cause notices resulting into separate Orders -in -Original, they had filed separate appeals before the Tribunal. We therefore, have multiple petitions filed by Symphony Limited before us. Since facts are identical in all such petitions, we do not find it necessary to record them separately. Insofar as M/s. Polyset Plastics Private Limited is concerned, it faced only one show cause notice leading to single order and hence singular petition by such Company.

(3.) LEARNED counsel Shri Paresh Dave for M/s. Polyset Plastics Private Limited contended that the Commissioner has held the said Company as a mere facade and a puppet. In that view of the matter, counsel argued that no duty demand could have been made against such a Company. He relied on the decision of the Apex Court in case of Gajanan Fabrics Distributors v. Collector of Central Excise, Pune reported in : 1997 (92) E.L.T. 451 (S.C.) in this respect. Counsel further submitted that the Tribunal ought to have waived the entire pre -deposit in view of a strong prima facie case of the petitioner.