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TMI Blog2010 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Aggrieved by such orders, the appellants preferred appeals before the first appellate authority who directed the appellant to pre-deposit an amount of Rs.1,70,000/- in stay orders dt. 22/1/2008. Aggrieved by which, appellant filed miscellaneous applications for modification of the stay order and requested for full waiver. The said modification applications were not considered by the ld. Commissioner(Appeals) and the appeals were dismissed for non-compliance. Aggrieved by such an order, appellant preferred appeals before the Tribunal and Tribunal vide Final Order No.917 & 918/2008 dt. 25/7/2008 set aside the impugned orders and remanded the issue for decision by the ld. Commissioner(Appeals) after following the principles of natural justice. The current impugned order passed by ld. Commissioner(Appeals) in de-novo proceedings after giving an opportunity of hearing to the appellants. By the impugned order, ld. Commissioner(Appeals) has upheld the Orders-in-Original . 3. The ld. Counsel appearing on behalf of the appellant would submit that the Department was intimated on 06/10/2003 about the death of the proprietor of M/s. Dee & Em Naturals & Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit on the inputs. She would also rely upon the judgment of the Honble High Court of Kerala in the case of CCE&C Vs. Leelamma George [2004(163) ELT 17(Ker.)] and decision of this Tribunal in the case of CCE&C, Madurai Vs. S.N. Seeni Kumar [1989(24) ELT 591 (Tri.)] to press the point that the amount due to the Government has to be paid. 5. I have considered the submissions made by both sides and perused the records. The entire issue in this case is whether the appellant company M/s. Dee & Em Naturals & Fragrances which was a proprietorship company of late Shri Prakash Gandhi is liable for duty confirmed by the Adjudicating Authority and whether Shri Diren Gandhi, the successor of late Shri Prakash Gandhi is required to discharge such liability. 6. At the outset, I find that the issue could be disposed off on a single point of law. It is seen from the show-cause notice that the demand of the duty has arisen on the following allegations:- The Internal Audit Party attached to the Central Excise, Bangalore-III Commissionerate during the course of audit on the records of the said assessee during the month of March, 2004, has observed that the assessee has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A is applicable. 8. I find that the provisions of Section 11 were further amended w.e.f. 10/09/2004 for recovery of the amount from the successor in business. The said amendment reads as under:- Amendment of section 11. In section 11 of the Central Excise Act, the following proviso shall be inserted at the end, namely : Provided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held that duty cannot be recovered from a Private Limited Company for the period prior to its incorporation, for the manufacture of goods by the partnership firm since Section 11A requires notice to be served on the person chargeable with duty, who is the manufacturer. In the present case since the Limited Company was not in existence prior to 1-4-1999, the appellant is not the person chargeable with duty. (iii) In CBEC Circular No. 6/92, dated 29-5-1992 it has been clarified that Pvt. Ltd. Company is a separate legal entity which is distinct from shareholders comprising it. Hence each company is a separate manufacturer and would be entitled to separate exemption limit. (iv) The Supreme Court in the case of Supreme Washers (P) Ltd. v. CCE [2003 (151) E.L.T. 14 (S.C.)] has held that Limited Company should be treated as a separate entity for the purpose of exemption limit. Boards circular of 1992 was referred to. (v) On 10-9-2004, a new proviso to Section 11 of the Central Excise Act was introduced for recovery of duty from a person succeeding his predecessors business. This case, relates to a period prior to the introduction of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in these circumstances, revenue is before us. 3.Heard Sri N.R. Bhaskar, learned standing Counsel for the Revenue and perused the materials placed on record. 4.After hearing, we are of the view that no case as such is made out by the revenue in the case on hand. The Tribunal notices that during the relevant point of time, there was no provision available to the revenue for the purpose of demanding duty from the successor in the case on hand. A new proviso was introduced only from 10-9-2004 and the said new proviso would not be applicable to the case on hand. The said finding of the Tribunal, in our view, does not call for any interference particularly in the light of the facts as narrated by the Tribunal in its order. 5.No grounds. Appeal stands rejected without answering the questions of law since the order is based on facts. Ordered accordingly. 10. It can be seen from the above order of the Tribunal that it was specifically and clearly recorded that there is no provision to demand duty from the successor and this decision has been upheld by the Honrable High Court of Karnataka. This being the case, I am of the view that the provisions of Section 11 of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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