AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.4 OF 2009 IN CENTRAL EXCISE APPEAL NO.230 OF 2008 M/s. Harnik Food Industries .... Petitioner Vs. Commissioner of Central Excise, Pune. ..... Respondent ALONG WITH REVIEW PETITION NO.5 OF 2009 IN CENTRAL EXCISE APPEAL NO.229 OF 2008 M/s. Harnik Nutrients Pvt. Ltd. .... Petitioner Vs. Commissioner of Central Excise, Pune. ..... Respondent Mr. Arshad Hidayatullah, senior counsel with Mr. Anupam Dighe, Ms. Aarti Sathe and Mr. Ricab Chand for the petitioners. Mr. Rohit Pardeshi for the respondent. AJN 2 CORAM : SMT. RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 24TH MARCH, 2009. P.C. :- 1. In this review petition, review is sought of judgment and order dated 28/1/2009 delivered by us in Central Excise Appeal No.229 of 2008 along with Central Excise Appeal No.230 of 2008. 2. It is well settled that a judgment can be reviewed if the review petitioner satisfies the court that there is a discovery of new and important matter or evidence which after the exercise of due deligence was not within the knowledge of or could not be produced by him at the time when the decree was passed or order was made or that there is some mistake or error apparent on the face of the record or review is necessary for any other sufficient reason. It is necessary to see whether the petitioners have made out any such case in these petitions. AJN 3 3. Mr. Hidayatullah, learned counsel appearing for the review petitioners submitted that judgment dated 28/1/2009 needs to be reviewed because there is an error apparent on the face of the record. Learned counsel drew our attention to Order dated 28/4/2005 passed by the Division Bench of this court to which one of us (J.P. Devadhar, J.) was a party, in Writ Petition No.1607 of 1997 which was filed by the present petitioners. He submitted that by the said order, this court had remanded the matter to the Tribunal for fresh hearing in the light of the circulars and documents relied upon by the petitioners and judgments of the Supreme Court mentioned therein. One of the judgments which the Division Bench had directed the Tribunal to consider was Gajanan Fabrics Distributors v. Collector of Central Excise, Pune, 1997 (92) E.L.T. 451 (S.C.). Learned counsel submitted that the Tribunal was, therefore, required to consider this judgment in its proper perspective and pass appropriate orders. Learned counsel submitted that though the Tribunal has referred to this judgment, it has not appreciated the ratio thereof and that has resulted in a jurisdictional error. AJN 4 4. He drew our attention to the judgment of the Supreme Court in Gajanan Fabrics's case (supra). In that case, the Tribunal had upheld the finding of the Collector that the seven units which were the appellants before it were only a corporate facade although registered with the various authorities with a view to camouflaging their actual identity and thereby availing of the exemption which, otherwise, would be inadmissible to them. The Supreme Court observed that the Tribunal failed to give due attention to the fact that the Collector had confirmed, in the sum of Rs.11,84,708.51, the demand made in the show cause notices upon all seven units and their partners or directors. The Supreme Court further observed that having regard to the Collector's conclusion that all units other than Gajanan Weaving Mills were fictitious units, the sequitur, one would have assumed could only be that it was Gajanan Weaving Mills which was the assessee and liable to satisfy the demand. The Supreme Court observed that by confirming the demand upon all the seven units the Collector appears, however, to have treated them all as assessees and, implicitly recognized their independent existence. The Supreme Court, therefore, remanded the matter to the Commissioner, Pune, AJN 5 to hear and decide the show cause notices afresh in the light of the law laid down by the Supreme Court. The Supreme Court permitted the parties to file additional documents, if they so desired. The Supreme Court made it clear that the remand is now unlimited and the matters shall be decided without reference either to the order of the Tribunal under appeal or the earlier order of the Collector. 5. Learned counsel submitted that the Tribunal should have, therefore, followed the same course and remanded the matter. He submitted that since the Tribunal failed to do so, this court should have set aside the Tribunal's order and remanded the matter. We are unable to agree with learned counsel. We find that the Tribunal, in fact, considered the judgment of the Supreme Court in Gajanan Fabrics' case (supra) and after correctly appreciating its ratio observed as under : “8. In the case of M/s. Gajanan Fabrics Distributors, the Hon' ble Supreme Court observed that the Collector has recorded the finding which has been upheld by the Tribunal that all seven units except Gajanan Weaving Mills were only a corporate facade although registered with various authorities AJN 6 with a view to camouflage their actual identity and thereby avail of the exemption which would otherwise be inadmissible to them and yet the duty demand was confirmed upon all seven units whereas demand ought to have been confirmed only against M/s. Gajanan Weaving Mills. We find that in the case before us the Commissioner has confirmed the duty demand against both the units i.e. M/s. Harnik Food Industries and M/s. Harnik Nutrients Pvt. Ltd. thereby implicitly recognizing their independent existence by treating both of them as assessees, which is not correct. When M/s. Harnik Nutrients Pvt. Ltd. have been held to be dummy unit, the duty could have been demanded only from M/s. Harnik Food Industries, being the de facto and de jure manufacturer and not from M/s. Harnik Nutrients Pvt. Ltd. We modify the Commissioner's order to this extent”. After so observing the Tribunal held that the duty demand confirmed by the Commissioner is payable by M/s. Harnik Food Industries only. 6. We are unable to read the judgment of the Supreme Court in Gajanan Fabric's case (supra) to mean that in every case the matter must be remanded and the remand must be unlimited. In a given case, the Tribunal can modify the order of the Commissioner to bring it in conformity with the ratio of Gajanan Fabric's case AJN 7 (supra). In the present case, there is ample evidence on record justifying the conclusion reached by the Tribunal. The legal principle laid down in Gajanan Fabric' s case (supra) was followed by the Tribunal and obviously having regard to the evidence on record, the Tribunal thought that remand was not necessary. We cannot fault the Tribunal for this. Whether a matter should be remanded or not would depend on the facts of each case. We are unable to come to a conclusion that because the case was not remanded, there is any error apparent on the face of the record. 7. Mr. Hidayatullah then argued that the Tribunal has relied upon certain innocuous circumstances to come to the conclusion that one unit was a dummy unit of another. He submitted that in several cases, the Tribunal has held that the circumstances, which have been relied upon by it in this case cannot be taken into consideration to conclude that one unit is a dummy unit of another and those orders have been confirmed by the Supreme Court. A list of those judgments have been tendered in the court. We have also been given copies thereof. We may reproduce the list of the judgments tendered in the court along with the gist of AJN 8 circumstances. Circumstance Judgment considering this a innocuous circumstance Both the appellants have their premises in the same block. - Renu Tandon v. Union of India [1993 (66) E.L.T. 375 (Raj.)] - Bentex Industries v. Commissioner of Central Excise, New Delhi [2003 (151) E.L.T. 695 (Tri. - Del.) - Commissioner v. Bentex Industries [2004 (173) E.L.T. A.79 (SC) - Meteor Satellite Ltd. v. Collector [1985 (22) E.L.T. 271) The property tax, water charges and other charges relating to the entire premises occupied by both the appellants are paid by the appellants M/s. Harnik Food Industries. - Vivomed Labs (P) Ltd. v. Collector of C. Ex. [1991 (53) E.L.T. 152 (Tribunal)] - Collector v. Vivomed Labs (P) Ltd. [1992 (62) E.L.T. A119 (SC)] - Pimpri Gases [1990 (49) E.L.T. 474] AJN 9 Circumstance Judgment considering this a innocuous circumstance The office staff is common for both the appellants and their salary is paid by the appellants M/s. Harnik Food Industries. - Renu Tandon v. Union of India [1993 (66) E.L.T. 375 (Raj.)] - Bhagwan Das Kanodia & Ors., Bombay v. Collector of Central Excise, Bombay [1987 (32) E.L.T. 204 (Tribunal)] - Vivomed Labs (P) Ltd. v. Collector of C. Ex. [1991 (53) E.L.T. 152 (Tribunal)]. - Collector v. Vivomed Labs (P) Ltd. [1992 (62) E.l.T. A119 (S.C) - Alpha Soyo [1994 (71) E.L.T. 689] The products of both the appellants are sold through a common marketing agent. - Renu Tandon v. Union of India [1993 (66) E.L.T. 375 (Raj.)] - Bhagwan Das Kanodia & Ors., Bombay v. Collector of Central Excise, Bombay [1987 (32) E.L.T. 204 (Tribunal)] - Vivomed Labs (P) Ltd. v. Collector of C. Ex. [1991 (53) E.L.T. 152 (Tribunal)]. - Collector v. Vivomed Labs (P) Ltd. [1992 (62) E.l.T. A119 (S.C) Trademark “Harnik” belongs to M/s. Harnik Food Industries for which M/s. Harnik Nutrients Private Limited did not pay any royalty and used by both. - Bhagwan Das Kanodia & Ors., Bombay v. Collector of Central Excise, Bombay [1987 (32) E.L.T. 204 (Tribunal)] - Varco Sara [2004 (171) E.L.T. 79 (S.C.) AJN 10 Circumstance Judgment considering this a innocuous circumstance Both the appellants are controlled by Hingorani Family and, therefore, there is identity of interest. - Renu Tandon v. Union of India [1993 (66) E.L.T. 375 (Raj.)] - Meteor Satellite Ltd. v. Collector [1985 (22) E.L.T. 271] Investigation disclosed that all the production activities were carried out in the premises of M/s. Harnik Food Industries and in the other premises raw materials and packing materials of M/s. Harnik Food Industries were found stored. - Vivomed Labs (P) Ltd. v. Collector of C. Ex. [1991 (53) E.L.T. 152 (Tribunal)]. - Collector v. Vivomed Labs (P) Ltd. [1992 (62) E.l.T. A119 (S.C) - Meteor Satellite Ltd. v. Collector [1985 (22) E.L.T. 271] - Shree Packaging [1987 (32) E.L.T. 94]. Both the appellants were having common office in respect of the work of documentation. - Renu Tandon v. Union of India [1993 (66) E.L.T. 375 (Raj.)] - Vivomed Labs (P) Ltd. v. Collector of C. Ex. [1991 (53) E.L.T. 152 (Tribunal)]. - Collector v. Vivomed Labs (P) Ltd. [1992 (62) E.l.T. A119 (S.C) - Meteor Satellite Ltd. v. Collector [1985 (22) E.L.T. 271] 8. We have already noted the grounds on which an order can be reviewed. Assuming Mr. Hidayatullah is right, this submission does not furnish a ground for review. Besides, a circumstance may appear to be relevant in a given case, but it may not be so relevant AJN 11 in another case. It all depends on facts of each case. Quite often, it is the cumulative effect of all the circumstances which lead the court to conclude that one unit is a dummy unit of another. No hard and fast rules can be laid down. This submission of Mr. Hidayatullah must, therefore, fail. 9. Lastly Mr. Hidayatullah submitted that the Tribunal has held that there is 2% profit sharing between the two units. Learned counsel urged that there was no material before the Tribunal to come to this conclusion and, therefore, this court could not have confirmed this finding. He submitted that if there is factual assertion made by the Commissioner, the evidence to substantiate the same must be given by the Department. This was not done. Besides, this allegation was not made in the show cause notice. In our opinion, this cannot be a ground for review. In paragraphs 14 and 15 of our order, we have narrated several circumstances apart from 2% profit sharing which led us to conclude that the Tribunal was justified in coming to the conclusion that one of the units is a dummy unit of another and the demand is to be made from Harnik Food Industries. We may reproduce those paragraphs for ready reference. AJN 12 “14. It is important to note that both the appellants have their premises in the same block. The property tax, water charges and other charges relating to the entire premises occupied by both the appellants are paid by the appellants M/s. Harnik Food Industries. As per the agreement, appellants M/s. Harnik Nutrients Private Limited were to share 2% of their turnover with M/s. Harnik Food Industries. The office staff is common for both the appellants and their salary is paid by the appellants M/s. Harnik Food Industries. The products of both the appellants are sold through a common marketing agent. Trademark “Harnik” belongs to M/s. Harnik Food Industries for which M/s. Harnik Nutrients Private Limited did not pay any royalty. Trademark “Harnik” is used by both the appellants. Both the appellants are controlled by Hingorani Family and, therefore, there is identity of interest. Investigation disclosed that all the production activities were carried out in the premises of M/s. Harnik Food Industries and in the other premises raw materials and packing materials of M/s. Harnik Food Industries were found stored. Both the appellants were having common office in respect of the work of documentation. 15. It appears that in 1989 M/s. Harnik Nutrients Private Limited was closed down on account of Labour problems and their Central Excise Licence was surrendered in June, 1990. That unit was restarted in January, 1991. However, this fact was not brought to the notice of the department by filing application. This is a serious lapse and not a mere technical lapse as suggested by the appellants. Till the vehicles were seized and investigation was done, this fact did not come to light.” AJN 13 10. In view of the above, it is not possible for us to hold that there is some mistake or error apparent on the face of the record or that there is any other sufficient reason for review. In our opinion, no case is made out for review. The review petitions are, therefore, dismissed. [SMT. RANJANA DESAI, J.] [J.P. DEVADHAR, J.]