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TMI Blog2015 (3) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... r fresh considerations in the light of above observations. - Matter remanded back - Decided in favour of Revenue. - F.No. 198/202/12-RA - 71/14-CX - Dated:- 4-3-2014 - Shri D.P. Singh, Joint Secretary ORDER These revision applications are filed by the Commissioner of Central Excise, Kokata III against the orders-in-appeal No.66-69/Kol-III/2012 dated 24.5.12 passed by the Commissioner of Central Excise (Appeals), Kolkata-I with respect to, orders-in--original passed by the Assistant/Deputy Commissioner of Central Excise, Khardah-II Division. 2. Briefly stated that M/s ESS DEE Aluminium Ltd., Kolkata having Central Excise Registration No.AABCE3113GEM004 submitted/filed 33 (thirty three) rebate claims of duty paid on excisable goods exported before the Deputy/Asstt. Commissioner, Central Excise, Khardah-II Division. Except in some cases, exportation in all cases was originally executed by M/s India Foils Ltd., having Central Excise Registration No.AAACI6251QXM004 (hereinafter will be referred as M/s IFL). Invoices issued under Rule 11 of Central Excise Rules, 2002 were raised by M/s IFL as well as by the said claimant in some cases. Central Excise duty was discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enjoy the benefit of such scheme and in effect the former remains a separate legal entity. 3.3 The Commissioner (Appeal) failed to appreciate that it was sheer misstatement on the part of the claimant, who sought transfer of credit under Rule 10 of CENVAT Credit Rules, 2004 despite the fact that M/s IFL was still functioning as a registered manufacturer/assessee with observance of Central Excise formalities. 3.4. The Appellate Authority failed to appreciate that refund/rebate claim should be processed and sanctioned as per the guidelines laid down in Central Excise Law and corporate difficulties should not prevail er the execution and implementation of Central Excise Rules and procedure. 4. A show cause notice was issued to the respondent under Section 35 EE of Central Excise Act 1944 to file their counter reply. The respondent vide their written submission dated 30.10.2012, submitted their counter reply where they interalla mainly stated as under: 4.1 It is respectfully submitted that the Department is absolutely wrong to suggest that despite the merger as per BIFR Order, IFL still continued to be the manufacturer and exporter. It appears that it has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the name of IFL. It is, therefore, clear that the adjudicating authorities were fully aware of the fact of disappearance of IFL pursuant to the merger as per the BIFR Order dated 30-09-2010. 4.3 As per the terms of the BIFR Order all the assets and liabilities lying in the name of IFL on the date of merger passed on to EDAL. Thus the rebate claims arising out of the exports made by IFL before the merger as well as the rebate claims that arose out of the export orders issued in favour of IFL, but executed by EDAL (even though the export related papers were made showing the name of IFL) accrued to EDAL. EDAL having taken over the liabilities of the erstwhile company cannot be deprived of the benefits due to the erstwhile company arising out of exports. The Department cannot refuse to follow the clauses mentioned under TRANSFER AND VESTING' under Part-III of the 'SCHEME OF MERGER' between IFL and EDAL in the BIFR Order dated 30-09-2010, whereby all the assets, quotas, rights, licenses, permit etc. on the one hand and all the liabilities on the other of IFL that existed on the date of merger got vested in EDAL. It is absolutely wrong to contend that EDAL is not eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Registration Certificate that was issued in the name of IFL under the cover of their letter No. Nil, dated 29-06-2011. But surprisingly, the adjudicating authorities have refused to accept the contention of EDAL that IFL was no more in existence and according to them the operational existence of IFL was still there at the time of filing the rebate claims. They have banked on the plea that even though EDAL surrendered the IFL's Central Excise Registration Certificate on 30-06-2011, but the same was not still accepted. But fact is that the Department has not given any reason as to why- it has not accepted the said surrender even after the lapse of more. than a year by now. Does it mean that till the time EDAL surrendered the IFL's Central Excise Registration Certificate or the Department accepted the said surrender, in spite of it's legal death IFL should be treated to be in existence? It is clearly wrong on the part-of the revenue authorities to hold that IFL was still in existence as the Central Excise Registration Certificate was subsisting and monthly returns were filed. It is not expected of the Department to shy away from the reality just to deny the EDALs' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to exports executed by M/s IFL. The original authority vide impugned orders in-original rejected all the rebate claims on the ground that M/s Ess Dee Aluminium Ltd., Kolkata is not the proper claimant to file rebate claims. Being aggrieved by the said orders-in-original, the said claimant filed appeal before the Commissioner, (Appeal-I) Central Excise, Kolkata who in impugned order-in-appeal has held that' M/s IFL M/s Ess Dee Aluminium Ltd (Claimant) are not two different companies but the same legal entity and the matter was remanded back to the lower authority with a direction to issue SCN and also hear and decide the rebate claims by passing a speaking order. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 8. Government notes that the rebate claims filed by M/s EDAL where goods were also exported by M/s EDAL there cannot be any dispute about proper claimant Such claims are to be allowed provided the claims are otherwise in order. As regards the rebate claims filed by M/s EDAL where goods were exported. by M/s IFL the matter is required to be adjudicated in the light of provisions of Rule 18 of Central Excise Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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