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2017 (5) TMI 878 - CESTAT NEW DELHI

2017 (5) TMI 878 - CESTAT NEW DELHI - TMI - Adjustment of sanctioned refund amount against arrears of Central Excise duty of lessor company - Held that: - the appellants have not succeeded or acquired the business or trade of the arrears holder and even have not purchased any property of the arrears holder. They have simply entered into a lease agreement with reference to one of the properties of the arrears holder. This cannot make the appellants liable for any Central Excise duty arrears stand .....

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andran, Member ( Technical ) Ms. Shreya Dahiya, Advocate - for the appellant Shri G.R. Singh, Authorized Representative (DR) - for the respondent ORDER Per: B. Ravichandran These 5 appeals are against the common impugned order dated 28/11/2011 of Commissioner (Appeals), Indore. The appellants are engaged in the manufacture and export of Flexible Intermediate Bulk Containers. They have filed various claims for rebate under Rule 18 of Central Excise Rules, 2002. They have also filed claims for ref .....

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orders were confirmed by the Commissioner (Appeals) in the impugned order. 2. The learned Counsel for the appellants submitted that Section 11 of Central Excise Act, 1944 has no application in the present case. The appellants have not taken over a part or full business or trade of M/s Kalani Industries. Neither they have acquired nor succeeded M/s Kanlani Industries. They are an independent manufacturer, having legal status independent of M/s Kalani Industries. They have taken on lease, an indu .....

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of Section 11. Even if the appellants are considered as an associate company of M/s Kalani Industries, that by itself will not make them liable for an arrears of revenue standing against M/s Kalani Industries. 3. The learned AR supported the findings of the lower Authorities. He submitted that the appellants are in possession of a leased land and in terms of the agreement levies, taxes etc. are liable to be paid by the lessee of the land. The arrear standing against M/s Kalani Industries can be .....

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11 have not been examined to apply to the case of the appellant to recover the arrears standing against another legal entity. In fact, the Commissioner (Appeals), on more than one occasions, mentioned that the appellants and M/s Kalani Industries are interlinked and the appellant did not produce supporting documents to clarify their relationship with M/s Kalani Industries. I find none of the reasons recorded by the lower Authorities fall within the ambit of Section 11 and justify the recovery of .....

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on lease and the lesser shall not bear any burden of such charges. 5. A plain reading of the above clause clearly shows that the appellants liability as lessee is only with reference to the taxes and fees on the aforesaid assets leased by them. The Central Excise duty, arrear has no linkage to the leased land except that the land belongs to M/s Kalani Industries and was leased to the appellants. I find that the lease deed provisions have no relevance or application to justify the adjustment of s .....

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There was mention about the possession of excisable goods by the successor company liable for attachment by the Department. As noted from the facts of the present case, there is no reference to change of ownership of business of M/s Kalani Industries, in part or full, to the appellant or the appellant succeeding M/s Kalani Industries either by merger or by sale or by succession. There is no discussion or finding on any of these aspects in the present proceedings, before the lower Authorities. I .....

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