TMI Blog2010 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... No.26/2007 and No.27/2007 both dt. 18/10/2007 passed by the Asst. Commissioner, Central Excise, Yeshwantpur Division, Bangalore, under which the Adjudicating Authority confirmed the demand of Rs.4,03,982/- and Rs.87,636/- along with interest imposing equal amount of penalty and other penalties on the ground that the appellant is bound to pay an amount equal to Cenvat Credit if any allowed to them in respect of inputs lying in stock or in possession or contained in the final product lying in stock on the date of surrendering of Registration certificate to the Department. 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per book would indicate that the appellant would aware of the liability. The said demand has arisen on the ground that there was stocks of inputs and Cenvat Credit was lying unutilized and having surrendered registration certificate, but the appellant had not reversed the amount of credit taken on the inputs which was in stock. She would dray my attention to various correspondences held between the Department and the assessee regarding the audit paras and requirement of reversal of the Cenvat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has been taking repeated pleas, that he, as a successor to the business either due to demise or inherition, is not liable to pay the demand as the provisions of Section 11 of the Central Excise Act, 1944 was silent on the issue. As against these arguments, the ld. Commissioner(Appeals) has recorded the finding that provisions of Section 11 will come into play only when the issue has reached its finality and demand under Section 11A 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted from total duty liability and there was a separate show cause notice on the appellant and the erstwhile firm. (ii) Instead of dropping the proceedings, the demand was confirmed. The appellants was not put to notice as to why the firms duty should not be demanded from the Private Limited Company but the OIO has proceeded on that basis. In Saastha Plastics Pvt. Ltd. v. CCE [2001 (132) E.L.T. 498 (T-Bang.)], it 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, notice was issued mad a reply was obtained. Thereafter, an adverse order was passed against the assessee. Aggrieved by the said order, an appeal was filed before the Joint Commissioner of Central Excise. The Commissioner decided the case against the respondent. The respondent, aggrieved by the same, filed an appeal before the Tribunal. The Tribunal has accepted the case of the assessee. It 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 questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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