2001 (10) TMI 734

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.... short) was passed on to the respondents viz. M/s. Fenner India Ltd. with both the liabilities and assets, the assessees have the right to claim the refund, is not correct for the reasons that M/s. Fenner India Ltd. and the M/s. ISM Ltd. are two different legal entities having their own body of share holders, Board of Directors and Constitutions. Both the Companies were incorporated under the Companies Act, 1956 separately. The Revenue has further submitted that the unit and other properties of M/s. ISM Ltd. were taken over by M/s. Fenner India Ltd. only on a lease basis and this cannot be considered as a case of merger or amalgamation of one company with the other or mere change in name. This is only a case of lease of the factory as seen ....

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....e refund amount on behalf of M/s. ISM Ltd. who are a separate juristic person under the Companies Act, 1956. Though the claim was filed by M/s. Fenner India on 23-4-96 and it was filed in time, they have no locus standi since they were only lessee at that time and the assets and the liabilities of the Company were taken over by them only on or after 23-4-97 in view of the sale deed executed by them. Therefore, the refund claim should have been filed by the M/s. ISM Ltd. and not by M/s. Fenner India Ltd. and therefore the claim filed by M/s. Fenner India who have no locus standi is not admissible and the claim is also barred by time. Duty was paid on 18-9-95 and claim was filed by M/s. Fenner India on behalf of M/s. ISM Ltd. only on 23-4-96.....

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....uty was paid on 29-1-96 by M/s. ISM Ltd. and the refund claim was filed by M/s. Fenner India Ltd. on 23-4-96 immediately after getting registration certificate on 29-3-96 vide RC No. 4/96. He further submitted that M/s. Fenner India has become the successor of M/s. ISM Ltd. and further they took the licence on 29-3-96 of the premises and M/s. Fenner India under took to pay duty if any pertaining to the period prior to 29-3-96 and in view of this undertaking they had requested the Central Excise to give the Registration certificate which was granted accordingly to them. He has further submitted that since penalty imposed on M/s. ISM Ltd. was paid by M/s. Fenner India and accepted by the department, the department should also extend the benef....

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....r Bankers or others and the Bankers or Creditors of the lessor in turn shall have no right/lien or charge over the goods. There was a joint undertaking between M/s. Shree Solaiandavar Textile Mills Limited (formally known as M/s. Ideal Spinning Mills Ltd.) and Fenner India Limited consequent upon the take over of the aforesaid mill by Fenner India Ltd. and their application for Central Excise RC was submitted on 29-3-96 and according to the undertaking duty and other dues, if any, for the period prior to and intending on 29-3-96 shall be paid to the Central Excise department by M/s. Fenner India without prejudice to their right to claim the same from M/s. Shree Solaiandavar Textile Mills in accordance with the MOU dated 14-11-94 signed betw....