TMI Blog1993 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... given at the time of hearing of the appeal are as follows. The appellant company which was incorporated as a private limited company on 14-3-1978 was previously a partnership firm. The firm had been permitted by the Assistant Collector of Central Excise, Patna Division vide his order dated 28-12-1975 to avail proforma credit under Rule 56A of the Central Excise Rules in respect of Raw Petroleum Coke used in the manufacture of Calcined Petroleum Coke. After the firm was taken over by the Limited Company, letters were written by the latter on 22-5-1978 and on 4-7-1978 informing the Assistant Collector about the development viz. dissolution of the firm and the incorporation of the company, and requesting him to correct his records regarding the change of name as also in L-4 Licence, Personal Ledger Account and Proforma Credit Order and other relevant papers to avoid discontinuity in the businesss. While necessary action in regard to L-4 Licence, B-2 and B-13 bonds was taken, no orders for PLA and Proforma Credit were received. They, however continued to operate the PLA and RG-23 Part-II Accounts by making deposits in the former and taking credits in the latter and raising debits in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for availing Proforma Credit. They drew the attention of the Assistant Collector to their application dated 22-5-1978 and requested for expeditious order approving their request. They followed it up with a reminder, dated 18-7-1984. They were then asked to produce the acknowledgement/receipt of their letters of May and July 1978. After receiving their reply in this regard the authorities issued show cause notice dated 29-12-1984 asking them to show cause as to why duty amounting to Rs. 50,28,701.76 should not be recovered from them under Rules 56A(5)(1) read with Section 11A. The case was decided by the Assistant Collector after personal hearing was fixed on 11-3-1985, 3-4-1985 and 23-4-1985. No hearing, however, actually took place. The appellants had sought adjournment in respect of the hearings fixed for 11-3-1985 and 23-4-1985. The first adjournment was sought due to their Senior Accountant who was deputed to attend the hearing was involved in a road accident. The second date 3-4-1985 happened to be a holiday, but the appellants have stated that they visited the office for the hearing. On 23-4-1985, they requested for adjournment as their Senior Accountant was very busy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Collector, Patna on 30-12-1978 as confirmed by the Superintendent of Central Excise, Begusarai vide his letter dated 26-6-1985. The receipt of their letter dated 4-7-1978 was also confirmed by the Assistant Collector in his letter dated 18-2-1986 addressed to them. He has stated that their said letter had been received in his office on 1-1-1979. 4. It has been contented in the appeal that the entire matter before the Assistant Collector was extremely technical in nature and there was or could be no evasion of any duty in their having availed the Proforma Credit since July, 1978. 5. During the hearing of the appeal, Shri U.C. Chatterjee, learned Advocate and Shri A. Choudhury, learned Departmental Representative appeared before us on behalf of the appellants and the respondent Collector respectively. Shri Chatterjee handed over a written note of arguments. He reiterated the submissions raised in the appeal and pleaded that the same be allowed. Shri Choudhury supported the impugned order and pleaded that the appeal be dismissed. 6. We have considered the submissions made by both the sides. We have gone through the record. We find that the Collector (Appeals) whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Proforma Credit. This direction was totally silent on their earlier letter seeking change of name for the Proforma Credit Account when the correspondence between the department and the company was revived in December, 1983 by the issue of direction from the Department and reiteration of their request for issue of permission by the company even this request for necessary permission was not treated as an application. Show cause notice dated 29-12-1984 was issued for a sum of Rs. 50,28,701.76 on account of Proforma Credit taken during the period from 1-6-1984 to 30-11-1984 which demand was confirmed by the Assistant Collector. The Collector (Appeals) had also upheld this order. As the demand was for the period from 1-6-1984 to 30-11-1984 even their letter dated 24-12-1983 referring to their earlier letter of May 1978 and July 1978 and praying for expeditious order approving their request contained therein could have been treated as an application for Proforma Credit. The authorities fell in error in holding that there was no application for availing Proforma Credit from them. In the given circumstances of the case, their letters of 22-5-1978 and 4-7-1978 should have been taken as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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