TMI Blog2023 (1) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... en. It is not recorded anywhere that the debit had ceased at any stage before surrender of the registration certificate in December 2010. We are inclined to take note of the developments between the takeover of the undertaking in November 2008 leading to subsequent closure including addition in the account current with no record of the same having been refunded to appellant thereafter. It would also appear that the plea of the appellant on incorrectness of demand under section 11A of Central Excise Act, 1944 beyond the normal period as well as the drawing of attention of central excise authorities to the deficiency in the returns had been ignored as is evident from the finding of the adjudicating authority that the memorandum of unders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be discharged by the 6th of the month following clearance of goods and any failure thereof mandating payments thereafter, till deficiency was made good, by debit of account current owing to disbarment from resort to CENVAT credit account and the continued debit thereof by the appellant herein for discharge of duty liability, being in breach of rule 8(3A) of Central Excise Rules, 2002, led to proceedings against them; the confirmation of the said demands is the issue now raised by the appellant in this appeal. Narrating the background, Learned Counsel for the appellant submitted that the management had changed hands on 28th November 2008 with the registration ultimately surrendered on 28th December 2010 and that, on noting discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India [2015 (323) ELT 489 (Mad.)] and of the Hon ble High Court of Punjab Haryana in Sandley Industries v. Union of India [2015 (326) ELT 256 (P H)] that the interim stay of the Hon ble Supreme Court in the challenge of Revenue to the decision of the Hon ble High Court of Gujarat in Indsur Global Ltd v. Union of India [2014 (310) ELT 833 (Guj.)] does not override. It was further argued by Learned Counsel that the decisions of the Tribunal in Sigma Solvents Pvt Ltd v. Commissioner of Central Excise, Thane I [2018-TIOL-3858-CESTAT-MUM] and of the Hon ble High Court of Telangana in Commissioner of Central Excise v. DRD Body Techs India Pvt Ltd [2022 (379) ELT 106 (Telangana)] favoured that very submission. 4. According to Learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of proceedings before the Hon ble Supreme Court. It was also submitted that discharge of duty liability cannot be said to have occurred till account current was debited and balance therein did not suffice as payment of duty. It was further argued that the claim of the appellant to be in ignorance of the alleged fraud perpetuated by the erstwhile owners is not acceptable as they had taken over a going concern and therefore, could not have been oblivious of the deficiency. 6. Having considered the rival submissions, it would appear that the provisions of rule 8 of Central Excise Rules, 2002, as prevalent in September and October 2008, had been breached and that the appellant herein upon being aware of the breach had not made good the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances and the peculiar facts of operation of the manufacturing facility for limited period under the new management, such cursory disposal of the plea against invoking of the extended period of limitation does not, in our opinion, appear to be just. 8. To remedy these deficiencies, it would be necessary for the adjudicating authority to take stock of these facts and circumstances noted supra, to enable which it would be appropriate to set aside the impugned order and remand the matter back to the adjudicating authority. Needless to say, it shall be the responsibility of the appellant herein to place all relevant records noted by us supra before the adjudicating authority for determination of liability and detriment in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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