TMI Blog2000 (7) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... the units were having different entry as well as exit gates. In June, 1997, the appellants by their letter dated 12-6-1997 requested the Department to permit loading of material from Unit No. I as well as Unit No. II and clear the consignments from the main gate of Unit No. I in the same vehicle. In response to the said request the Range Superintendent by his letter dated 16-6-1997 advised the appellants to submit revised ground plan and surrender excise registration of Unit No. II. Accordingly, by letter dated 11-8-1997, the appellants submitted a revised ground plan for both the units and specifically requested the Range Superintendent to club both the registrations. They also submitted the registration certificate of Unit No. II for cancellation. In response to letter dated 28-8-1997 the Range Superintendent, considering the fact that Unit No. II was not a separate unit but extension of Unit No. I permitted the clubbing of both the units under the old registration of Unit No. I with effect from 28-8-1997. The registration certificate of Unit No. II was simultaneously cancelled. By the said letter the Range Superintendent also permitted the appellants to transfer the accumulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent had stated as under : In view of your above request, this office clubs both the"2. units in the old registration certificate No. 22/CH69/SKDI/92 with effect from 28-8-1997. Further, please note that the balance amount of Central Excise duty lying unutilised as on 28-8-1997 in your RG 23A Part II and RG 23C Part II registers of Unit II is hereby permitted to transfer in your RG 23A Part II and RG 23C Part II registers under your old registration certificate No. 22/CH69/SKD I/92. Further, you will maintain single RG 23A Part I register after taking the stocks of inputs lying in balance of your Unit No. II in the registration Certificate No. 22/CH69/SKDI/92 in existing unit with effect from 28-8-1997.........." The letter ended with an endorsement addressed to the Assistant Commissioner Central Excise, Ghaziabad stating "in reference to the discussion held with the undersigned on the subject noted above on 22-8-1997 at Ghaziabad as there is no loss of revenue in this case". 6.Ld. Counsel has submitted that the wording of the letter was clear and the Superintendent had given full permission to transfer the credit outstanding in the relevant registers of Unit No. II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit was revenue neutral). Further, even if it is held that the required permission had not been obtained before the transfer of unutilised credit, the result would be the restoration of status quo-ante by way of unutilised credit going back to the accounts of Unit No. II. In this connection ld. Counsel relied on Tribunal's decision in ECE Industries Ltd. v. C.C.E. vide Final Order No. A-1117/98, dated 22-12-1998. Ld. Counsel also contended that the impugned order was arbitrary inasmuch whereas demand that has been confirmed was for the period September 1997 to December 1997, for the remaining balance of the credit utilised by the appellants for the subsequent period August, 1998 to March, 1999 no objection had been raised by the Department, nor any show cause notice issued. 8.Apart from the merits of the case, according to the appellants, the show cause notice issued on 2-4-1998 was also barred by limitation since the period covered under the show cause notice relate to September 1997 to December 1997. 9.Shri Mewa Singh, ld. SDR appearing for the respondent Commissioner submitted that the allegation against the appellant was that they had contravened the provisions of Rule 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions. The allegation against the appellant in the show cause notice, and the finding of the Commissioner in the impugned order, is that they have not made an application to the Commissioner under Rule 57F(20) and Rule 57S(5) before they transferred unutilised credit lying in Unit No. II to Unit No. I. The letter dated 28-8-1997 issued by the Superintendent permitting such transfer was, according to the Department, not a legally valid permission for purposes of the above rules. The first contention raised by the appellants is that neither Rule 57F(20) nor Rule 57S(5) were attracted in their case. It is argued that none of the situations contemplated under Rule 57F(20) or Rule 57S(5) such as shifting of the factory, change of ownership or change in the site of the factory resulting from sale, merger, amalgamation or transfer to a joint venture has taken place. In the facts of the case it is submitted that the invoking of Rule 57F(20) and Rule 57S(5) for denying the benefit of availing of unutilised credit in the facts of the case was not called for. We have examined this argument. Rule 57F(20) and Rule 57S(5) similarly worded. Rules reads as follows : Rule 57F(20) : On an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that form RG 23A is attracted in every case where a declaration is filed under Rule 57G. Though a manufacturer may be having one or more factories, the manufacturer is required to maintain his RG 23A form in relation to each factory. The requirement of maintaining the credit account in RG 23A is therefore factory-wise and not manufacturer-wise. When a factory belonging to the same manufacturer is shifted to another site or when the ownership of the factory undergoes a change or where the site of the factory undergoes a change as a result of sale, merger, amalgamation or transfer of a joint venture, permission is required to be obtained for transfer of unutilised credit lying in form RG 23A in respect of the factory which is shifted or its site is changed as a result of, among other things, 'merger'. In the present case, admittedly there has not been shifting of the factory, nor a change of ownership of the factory. However, inasmuch as the second factory (Unit No. II) has ceased to have a distinct and separate site by way of its merger with another factory (Unit No. I), the condition of "change in the site of a factory resulting from sale, merger........." has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toppel and had relied upon two decisions namely, the Apex Court decision in Kasinka Trading v. U.O.I. [1994 (74) E.L.T. 782] and Shrijee Sales Corporation v. U.O.I. [1997 (89) E.L.T. 452]. In the latter case it had been held that though it may be within the competence of the Government to resile from a promise on giving reasonable notice giving the reasonable opportunity to the assessee for resuming his position, (unless it was possible for the assessee to restore the status quo ante), the promise would become final and irrevocable. Appellants have argued that in their case, since both the units have been allowed to be merged, Unit No. II has ceased to exist and no RG 23A account is available to which the unutilised credit can be restored. It is, therefore, argued that in terms of the decision in Shrijee Sales Corpn case, (supra) withdrawal of the permission cannot be allowed and the permission granted in terms of Superintendent's letter has become final and irrevocable. We find that this contention of the appellant has merit and has to be accepted as has been done by the Madras High Court in a very similar situation in the case of India Piston Ltd. v. Assistant Commissioner report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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