1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 81 OF 2008 The Commissioner of Central Excise, ) Pune-II, having his office at ICE House, ) B-Wing, Wadia College, 41/A, Opp. ) Sassoon Road, Pune – 411 001. ).. Appellant Versus 1. M/s. Ravi Batteries, ) 2. M/s. Ganesh Industries ) havig their office at B-15 & B-16 ) MIDC, Shiroli (P), Kolhapur. )..Respondents Mr. R.V.Desai, Senior Counsel with Mr. A.S.Rao for the Appellant. Mr. Atul Rajadhyaksha, Senior Counsel with Mr. Kedar Wagle for the respondents. CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. DATE: 30th June, 2009. 2 JUDGMENT: (PER J.H.BHATIA,J.) 1. Though several questions have been stated as questions of law in this Appeal, the learned Senior Counsel conceded that only following question will be pressed by the Revenue : “Whether in the facts and circumstances of the case and in law, the impugned order of the Tribunal is perverse as the same is contrary to the evidence on record with regard to the independency of the two Units of the Respondents No.1 and 2 ?” 2. To state the facts in brief, the respondent No.1 – M/s. Ravi Batteries is a unit manufacturing battery plates, attractiing Central Excise Duty @ 18% advalorem and the said product is covered under the Small Scale Industries (SSI) Notification and is entitled for free clearance of first Rs.30 lacs in each financial year. Anti Evasion Squad conducted a search in the shop and office premises of the respondent No.1 as well as residential premises of the active partners and the Manager on 31.12.1997 and 1.1.1998. The office premises 3 of respondent no.2 – M/s. Ganesh Industries, which is adjacent to respondent No.1, were also searched. Respondent No.2 is independently registered as small scale industries entitled to similar benefits in respect of clearance of goods for first Rs.30 lakh. 3. On behalf of the Revenue, it was contended that the respondent No.2 is only a dummy unit of respondent No.1 and collectively they had cleared the goods exceeding Rs.53 lakh. A show cause notice was issued to both the units and their active partner and the Manager. By the order-in- original dated 12th June, 2000, he duty and penalty were imposed on the respondent No.1 and respoondent No.2 and one Mr. P.G.Joshi, who was a partner of both the firms and Mr. Rajendra Joshi, who was the Manager of the responent No.1. The said order was challenged in Appeal No.E-2927 to 2930 of 2000 and E-2096/2000 before the CESAT. 4. The learned Judicial Member rejected the contention of the Revenue that the respondent No.2 was a dummy of respondent No.1 and that the production of both these units should be clubbed for the purpose of imposing duty. In the result, the Judicial Member proposed to allow the appeals. However, the Technical Member of the Tribunal agreed with the 4 Commissioner of Central Excise and maintained the Order-in-original. In view of the difference of opinion between the two Members, the matter was referred to a third Member. The learned 3rd Member, after hearing the parties,agreed with the findings of the Judicial Member. In view of the majority decision, all the appeals were allowed and the Order-in-original was set aside. That order is challenged in this Appeal by the Revenue. 5. We have carefully perused the orders passed by the Commssioner of Central Excise as well as all the three Members of the Tribunal. The record reveals that the respondent No.1 – M/s. Ravi Batteries is a partnership firm established in 1978 having four partners. This firm is a manufacturer of Lead Battery Plates. The firm is carrying on its business at Plot No.B-15, MIDC, Shiroli, Kolhapur. The respondent No.2 – M/s. Ganesh Industries is also a registered partnership firm. It was established in the year 1991 with three partners. Out of them, Prabhakar Joshi was partner in both the firms. The remaining partners in the said firm are different, though they may be related. Since establishment, respondent No.2 firm and its unit were situated at Kagal at a distance of about 50 K.M. From Kolhapur. M/s. Ganesh Industries shifted the manufacturing operations from Kagal to MIDC, Shiroli, Kolhapur sometime in 1992-93. both the respondents had 5 independently taken loans from the Banks. They had also submitted their separate declarations about the production. It appears that the respondent No.2 had submitted returns about production for the year 1990-91 at Kagal. Durig the year 1992-93, because it was in the process of shifting from Kagal to Shiroli, the production was much less, as production was undertaken only for three months. Independent account books were maintained by them even after shifting of respondent no.1 from Kagal to Shiroli. Both the units were not situated on the same property. The respoondent No.1 was situated at Plot No.B-15, while respondent no.2 was situated on Plot No.B-16 of MIDC, Shiroli. Merely because both the firms were dealing in the same type of production and because one of the partners in both the firms was same, it could not be concluded that respondent no.2 was a dummy unit of respondent No.1. In view of these reasons, the Tribunal rejected the contention of the Revenue and allowed the appeals by majority of two against one. The findiings of the Tribunal are clearly based on facts. In view of some of the salient facts noted above, it is impossible to hold that the findings of fact given by two of the Members are perverse. 6. For the aforesaid reasons, we find that no question of law is involved in the present Appeal and, therefore, the Appeal is liable to be 6 dismissed. 7. In the result, the the Appeal stands dismissed. (J.H.BHATIA,J.) (F.I.REBELLO,J.)