9911796707
TMI Blog2017 (5) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed various claims for rebate under Rule 18 of Central Excise Rules, 2002. They have also filed claims for refund of service tax paid in respect of various input services used by their SEZ units, in terms of Notification No.9/2009-ST dated 03/03/2009. The rebate/refund claims have been sanctioned by the Original Authority. However, the amounts sanctioned were ordered to be adjusted against arrears of Central Excise duty pending recovery from M/s Kalani Industries Ltd, Pitampur, in terms of Section 11 of Central Excise Act, 1944. The appellants are aggrieved by the order for such adjustment. The original orders were confirmed by the Commissioner (Appeals) in the impugned order. 2. The learned Counsel for the appellants submitted that Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made from a cross holding company as ordered by the lower Authorities. 4. I have heard both the sides and perused the appeal records. The dispute of the present appeals are relating to the liability of the appellant to pay the arrears standing against M/s Kalani Industries Pvt. Ltd. On a perusal of the impugned order it is clear that the provisions of Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11, as applicable to transfer or disposal of business or trade in whole or in part or in change in ownership thereof. 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. It is seen that Hon'ble Madras High Court in Sri Jayajothi Company Ltd. vs. CCE, Tirunelveli reported in 2011 (268) E.L.T. 164 (Mad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the proviso to Section 11 of the Central Excise Act, 1944". 7. In the present case, 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 standing in the name of the owner of the land M/s Kalani Industries. 8. On close examination of the impugned order and the grounds of appeal, I find that the impugned order is not legally sustainable. Accordingly, the same is set aside. The appeals are allowed. The Cross Objection by Revenue is also disposed of. (Dictat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
