TMI Blog2007 (11) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jayaraman, Member (T) [Order per: T.K. Jayaraman, Member (T)]. - 1. This appeal has been filed against the Order-in-Original No. 10/2006-C.E., dated 30-11-2006 passed by the of face Commissioner of Customs Central Excise, Tirupati. 2. The appellant M/s. Lanco Industries Ltd. (M/s. LIL in short), cleared with goods manufactured by them to their sister unit. There was short payment of the duty on account of wrong valuation, which was found out by the Audit team of the Central Excise Department. Therefore, action was taken to recover the differential duty to the tune of Rs. 1,26,09,443/-. Proceedings were initiated against the appellant invoking the longer period. The Commissioner confirmed the demand and imposed mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se they did not challenge the duty demand. Therefore, the fact that the duty demand has been confirmed itself shows that there is suppression of facts. And once there is suppression of facts, the Cenvat credit cannot be taken on the basis of the supplementary invoice issued in terms of Rule 9 of the Cenvat Credit Rules. Another point urged by the learned JCDR is that on the date of issue of supplementary invoice, the sister unit namely M/s. Lanco Kalahasti Casting Ltd. (M/s. LKCL in short) got merged with the appellant unit in view of the Andhra Pradesh High Court's order and in view of that merger, on the date of issue of the supplementary invoice, the recipient company viz. M/s. LKCL did not exist at all. On this ground also, the credit c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the transactions between the two companies prior to amalgamation. When the differential duty is paid by LIL, they passed on the same to LKCL. The Lit being successors to LKCL are entitled to take credit of the differential duty. Any rights or obligations relating to the transactions prior to dissolution and amalgamation get automatically stand transferred to the transferee company i.e. LIL. Assuming for a moment that there was a short levy of duty of excise on transactions made by LKCL with any other company by name XYZ before its dissolution and amalgamation with LIL, it is difficult to imagine that the C.E. department would not issue a Show Cause Notice to LIL proposing to demand the duty short levied. The department would not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot merged with the appellant company, had also a right to take Cenvat credit on the duty paid by the transferee company viz, the appellant. That right cannot be extinguished by reason of the merger. Therefore, even if the invoice had mentioned wrongly the name of LKCL, which did not exist by virtue of merger of LKCL with the appellant company, the appellant company gets all the rights of the transferor company also. In other words, the appellant company, by virtue of the merger is entitled for the Cenvat credit of duty paid on the supplementary invoice. But for the merger, the transferor company would have availed the Cenvat credit. Therefore, we do not agree with the contention of the Revenue that consequent to the merger of the transferor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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