TMI Blog1989 (2) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... CET. Their inputs viz. copper and aluminium bare wires were eligible for proforma credit under Rule 56A. Till May, 1987 the manufacturing activity was carried on by the partnership firm in the name and style of Ashapura Electricals. In May, 1987 it was converter into a limited Co. The successor company according to the Articles of Association, acquired and took over as a going concern, the assets and liabilities of the partner ship firm and carry on the business conducted by the said firm. The appellants sought for transfer of the licence in the name of the Limited Company on account of the change in the constitution of the firm. This letter along with the application was sent to the Supdt. The Supdt. however, carried out a suitable amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants contended as below: When the change was made, the successor company submitted a requisite application for transfer of the licence. This letter was dated 17-8-1977. Along with this letter, they enclosed Memorandum of Association Articles of Association of the successor company along with the original licence. On the basis of this letter, the Supdt. made the necessary amendments and returned the original licence. If a new licence was required, the authorities would have asked for a fresh application and the company would have no objection to furnish the same. After making such amendments, they also got the B-2 bond executed. Recognition of continuation of the successor company by the Deptt. is also reflected in the fact that the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there had been any omission on this ground, it is purely a technical one and in this context he cited the following decisions: (i) 1984 (18) E.L.T. 135 (Tri) dated; (ii) 1986 (26) E.L.T.65 (Tri) ; and (iii) 1988 (17) ECR 17 Bombay High Court. 4. In terms of the aforesaid decisions, he contended that mere non-compliance with any procedural requirements should not deny the manufacturer the availability, of the proforma credit. Arguing on the time bar, Shri Christian contended that in this case everything was available before the department. They had not suppressed the fact that they have succeded the erstwhile partnership firm. They have also submitted the relevant extracts of RG-23 along with RT-12 returns which have been assessed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take out the effect of Rule 178; since they are entirely a new licensee, they should have applied for the requisite permission and only after getting the permission they should have started availing the proforma credit. As regards time bar, he contended that D-3 intimation and R.T-12 assessments are dealt with the level of the Supdt. The requisite permission under sub-rule (2) of Rule 56-A is to be obtained from the Asstt. Collector. It was necessary on the part of the appellants to produce such a permission which has not been so produced. In this view of the matter, he supported the allegation of wilful suppression of facts. Shri Arya, however, did not make any submission with regard to the maintainability of the order passed under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the successor firm. In the same way any benefit which have occurred to the partnership firm would also be available to the successor company. This is evident from the Articles of Association. Now the question is whether it is right to hold that the permission obtained by the partnership firm gets vitiated because of the non-observance of the provisions prescribed under sub-rule (2) of Rule 56A. In this case admittedly there is a permission granted to the erstwhile partnership firm and this permission is also a property of the partnership firm, which has been taken over by the successor company. Be that as it may, the department themselves have not chosen to issue a fresh licence treating the company as an entirely different manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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