TaxTMI 
TaxTMI 
2015 (3) TMI 953
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....M/s IFL as well as by the said claimant in some cases. Central Excise duty was discharged by M/s IFL as well as by the said claimant in some cases. Other export related documents viz. Bill of Lading, Bill of Export, Delivery Chalan, Packing List etc. were raised by M/s IFL only. Copies of Bank Realisation certificate issued by the authorized banks was also in the name of M/s IFL. Deputy/Assistant Commissioner, Central Excise, Khardah-II Division 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 order-in-originals the said claimant filed appeal before the Commissioner (Appeal-I) Central Excise, Kolkata. The Appellate Authority in his order-in-appeal No.66-69/Kol-III/201224.5.12 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. 3. Being aggrieved by the impugned orders-in-appeal, ....
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....at 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 not appreciated the mandatory provisions of the 'Scheme of Merger', sanctioned by the BIFR Order dated 30-09-2010, whereby IFL got merged with EDAL with effect from 30-09.-2010: IFL,, being the. Transferor company got dissolved without requiring it to be wound up as provided under sub-Para 8.6 [Part III-TRANSFER AND VESTING] of the Scheme of Merger. Therefore, on and from 30-09-2010 IFL ceased to exist anymore both physically and legally and all the assets and liabilities of IFL passed on to EDAL. Attention is drawn to clause (a) of sub-Para 2.14 [Part 1- GENERAL; DEFINITIONS] of the Scheme of Merger, wherein it has been specifically defined that the 'Undertaking` of IFL, being transferred to EDAL, shall mean all assets and properties, whether movable or immovable, tangible or intangible, real or personal, present or contingent, in possession or reversion, corporeal or incorporeal of whatever nature and the clause (b) of sub-Para 2.14 further, inter alia, included "all permits, quotas, rights, e....
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...., 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 eligible to claim rebate in respect of the exports purportedly made by IFL, as the ARE-I Central Excise Invoice, shipping bill, commercial invoice, etc. were issued by IFL in some cases and in respect of other cases, even though the ARE-1s and Central Excise Invoices were prepared in the name of EDAL, but the shipping bills, commercial invoices, etc. were found to be in the name of IFL. One cannot lose sight of the fact that EDAL inherited all the assets and liabilities of IFL in view of the merger and in such situation, being the successor-in-interest they are entitled to all the rebate claims irrespective of the fact that the exports were made by IFL. 4.4 It must be appreciated that in view of the Merger, when IFL did not exist anymore, no question of IFL's submitting disclaimer in favour of the EDAL for getting rebates should arise. The Department should have appreciated and accepted the explanation given by EDAL that it was not practically possib....
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....learly 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' lawful rebate claims. It is stated that had the basic fact of merger that had taken place between IFL and EDAL gone home, the issues that are being dragged on propelling to deny the benefit of rebate claims would not have arisen at all 4.7 It is unfortunate that the revenue authorities in the Revision Application have once again allowed themselves to be carried away by the trivialities, which are absolutely inconsequential, as far as the eligibility of EDAL to the rebate claims is concerned. In the grounds for setting aside the impugned Order in Appeal it has been stated that M/s. IFL was granted the benefit of DEPB Scheme by DGFT and therefore EDAL being the successor upon merger cannot enjoy the benefit of special incentive, sanctioned by DGFT. It is absolutely strange to hear such argument, when all the benefits, rights, incentives etc. of IFL accrued to EDAL along with all the liabilities by vir....
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....DAL 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 Rules 2002 read with Notification No.19/04-CE (NT) dated 6.9.04 and Section 11B of Central Excise Act 1944. Respondent has contended that IFL got merged with EDAL w.e.f. 30.9.10 as per BFIR order, that IFL being the transferor company got dissolved without requiring it to .be'' would up as provided under Sub-para 8.6 (Part-III-Transfer and Vesting) of the scheme of merger, that on and from 30.9.10, IFL, ceased to exist anymore both physically and legally and all assets and liabilities of IFL passed on to EDAL. In this regards Government notes that respondent has taken a contradictory stand. On the one hand they-'are contending that IFL ceased to exist legally and physically after 30.9.10, whereas, on the other hand the said IFL continued to a central excise registered assesse and continued to export the goods even after 30.9.10. They should have su....