Arijit Pasayat, J. - (1.) Challenge in these appeals is to the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal, Bangalore (in short the CEGAT). By the impugned judgment appeals filed by the revenue against the common order of Commissioner of Central Excise, Bangalore (in short the Commissioner) was dismissed. The Commissioner had dropped the proceedings initiated vide a show cause notice dated 4.5.1995 relating to availability of exemption under Notification Nos. 175/86 and 1/93.
(2.) Background facts, as projected by the appellant are as follows:- Vide the Show Cause notice, it was alleged that M/s Brindavan Beverages Pvt. Ltd., (hereinafter referred to as BBPL) who were engaged in the manufacture of aerated water and were the franchise holders to M/s. Parley Exports Ltd. (hereinafter referred to as PEL) in whose brand names they had manufactured goods viz., Limca, Thums Up, Gold Spot, had also manufactured aerated water in the name and style of Citra which was said to be brand name of M/s. Limca Flavours and Fragrances Ltd., (hereinafter referred to as LFFL, a holding Company of M/s. PEL. They had also manufactured goods under the brand name of "Bisleri Club Soda" with the permission of M/s. Acqua Minerale (P) Ltd. (hereinafter referred to AMPL] and they had availed and paid duty under exemption notification 175/86 and 1/93, for the said Citra and Bisleri Club Soda bottles, claiming that the brand name owners, were registered with the Directorate of Industries as a Small Scale Unit and, therefore, they were also eligible for exemption under the said Notifications. On the basis of intelligence gathered that M/s Parley Exports Ltd., and Parley International Ltd., (hereinafter referred to as PEL and PIL respectively] were under-valuing the concentrate and thereby evading central excise duty, investigations were caused to be made by Officers of Directorate General of Anti-evasions and the Central Excise Jurisdictional Officers. Enquiries were caused and statements were recorded and pursuant to the said operations, according to Revenue, M/s BBPL availed the SSI exemption fraudulently in the conspiracy with AMPL and PEL by willfully making a mis-statement and suppressing correct facts and central excise duty amounting to Rs.39,51,028/- for the period from July 1993 to January 1994 was demandable by invoking the longer period of limitation provided under the Central Excise Act, 1944 (in short the Act). It was also found that the Assistant Collector had passed an order permitting BBPL, SSI exemption on "Bisleri Club Soda" and "Citra". However, it was noticed that the facts disclosed in the enquiries conducted were not placed before the Assistant Collector in as much as the investigations conducted revealed that PEL are the owners of brand name such as "Bisleri" for club soda and "Citra" and LFFL was under- evaluating the goods to keep the turn-over below the exemption limits. It was also alleged that LFFL who own "Citra" brand were engaged in the manufacture of flavours in their factory at Ahmedabad had availed exemption of the SSI Notifications as amended and had permitted franchise of small users the "Citra" brand name on terms and conditions and consequently the franchise also started availing the SSI benefit which was not eligible as the investigations revealed that "Citra" was developed and launched by the R and D efforts of PEL and was got registered as a brand name of LFFL. It was alleged that they have deliberately fragmented the manufacture of flavours to avail the benefit. The Parle Group Management, centrally and commonly, controlled the production including all aspects thereof were managed and controlled by the executives of PEL. If the shelter of corporate veil was lifted and removed, then it was seen that for purposes of other taxes it was one, but for notifications under Central Excise, they were shown as separate persons. Therefore, the value of clearance of all excisable goods removed from PEL, PIL and LFFL were to be taken together to determine the eligibility of LFFL. The benefits which LFFL were availing of the SSI claimed by them were not available to them and since there was a deliberate fragmentation of manufacture to avail SSI exemption, the benefit of exemption on "Citra" was not eligible. Therefore, excise duty amounting to Rs.79,48,115/- for the period October 1990 to January 1994 in respect of "Citra" was demandable by invoking the longer period of limitation in view of the deliberate suppression of facts.
(3.) Noticees submitted their replies. On consideration of the submissions, proceedings initiated on the basis of the show cause notice dated 4.5.1995. Revenue preferred appeals before the CEGAT.;