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TMI Blog2018 (1) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not spell out that M/s. Palmetto Industries would be responsible for any central excise dues that may arise in respect of AWBI. Also, the proceedings per se are hit by limitation, since the show cause notice for the period December 2004 to April 2005, was issued only on 20.9.2007. Demand set aside - appeal allowed - decided in favor of appellant. - E/336/2010 and E/414/2010 - Final Order Nos.43274-43275/2017 - Dated:- 19-12-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Raghavan Ramabhadran, Advocate and Shri R. Janardhanan Pillai, Consultant for the Appellants Shri R. Subramaniyan, AC (AR) for the Respondent ORDER Per Bench The facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchaser has given an undertaking dated 11.9.2007, to the effect that any existing and future excise duty liability will be paid by M/s. Palmetto Industries. The director of M/s. Palmetto Industries also appeared for the personal hearing. In adjudication, the original authority confirmed the demand of ₹ 8,84,985/- with interest thereon in respect of the strips / tapes cleared by AWBI without payment of duty to M/s. Sathjothi. The adjudicating authority, however, ordered recovery of the above demand and interest from M/s. Palmetto Industries, inter alia, relying on the provisions of section 11 of Central Excise Act, 1944 and concluding for duty liabilities of the predecessor are recoverable from the successor. Equal penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi and Sath Jothi. 2.4 Present demand is vitiated inasmuch as the show cause notice was issued only on AWBI and not in the appellant. 2.5 Section 11 is applicable only when the successor company takes over the entire business of the predecessor company along with all assets and liabilities. In the present case, the appellant bought only the plant and machinery from AWBI and not the entire unit as a running concern. Reliance is placed on the following case laws wherein it has been held that Section 11 is not applicable when only the plant and machinery have been acquired from the old unit: Rana Girders Ltd. V. Union of India [2013 (295) ELT 12(SC)]; Review Petition dismissed at - 2015 (320)ELT A175 (SC)] Kohinoor Ropes Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department. The law in this regard is well settled by umpteen number of judgments. 3.2 The order in original was passed without hearing the appellants and thus there was violation of principles of natural justice. 3.3 In terms of the job work Notification 214/86 dated 25.3.1986, is the responsibility of the supplier of the raw materials to give undertaking to the jurisdictional Assistant Commissioner to the effect that duty liability will be discharged by the supplier of the order in Original. Therefore, if the supplier has not rendered such declaration, the appellant could not have been found fault with. No show cause notice was issued on the supplier of the raw material. 3.4 When it is found that the show cause notice is hit by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purpose of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change.] 7. Discernably, the import of this provision will be restricted to duty and other sums recoverable or 'due'. From the facts, it emerges that the new registration was obtained by M/s. Palmetto Industries on 14.9.2007, on which date, there were no duty or sums recoverable or due. In respect of AWBI, even though the show cause notice was issued on 20.9.2007, the amount would become recoverable or due only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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