Shiben K. Dhar ORDER
Shiben K. Dhar, Member (T)
1. This appeal is directed against Order-in-Original No. 8/Addl. Collr./MD/89, dated 29-9-1989. The appellants have been denied the benefit of concessional duty under Notification No. 175/86 on the ground that during the relevant period they did not hold valid registration certificate from the Directorate of Small Scale Industries.
2. Arguing for the appellants, ld. Consultant submits that by a resolution the appellants company changed its name from Sahaj Zips Private Limited to Sahaj Cerchem Private Limited. This change was allowed by the Registrar of Companies on 10-8-1987 and in this connection he draws our attention to Page 42 of the Paper Book. They also applied to Directorate of Industries for necessary amendment in the small scale registration certificate issued to them in 1981. This application was made on 1-9-1987. The Directorate of Industries made the necessary change in its certificate on 11-8-1988. Subsequently when they sought clarification from them they made this changed name effective from 1-9-1987 to their letter dated 29-1-1990. Necessary endorsement with the changed name effective from 1-9-1987 was also made in the registration certificate. This changed name on their application to the Superintendent was also incorporated by the Superintendent of Central Excise (Page 46) in the L-4 Licence by indicating the new name as Sahaj Cerchem Pvt. Ltd. This change was effected on 25-9-1987. They filed their RT 12 Returns in the new name and these returns were duly finalised. It is true that for part of the period, even after effecting the change in the name, they continued to clear the goods indicating the name as Sahaj Zips Pvt. Ltd. This was done only because they had a stock of old printed gate passes. There was no change in the constitution of the firm or the Directors and the company effectively remained the same company as it was before the change in the name was effected. In such circumstances, when the name is subsequently incorporated, the benefit of small scale exemption cannot be denied. In support of his contention he cites the case of Kedia Organic Chemicals P. Ltd. v. Commissioner of Central Excise, Surat - 1996 (13) RLT 346; Goa Bottling Co. Pvt. Ltd. v. C.C.E., Goa - MANU/CE/0042/1993 : 1993 (67) E.L.T. 721 (Tribunal) and C.C.E. v. S.K. Engg. & Trading Co. - MANU/CE/0186/1993 : 1993 (68) E.L.T. 240. In regard to limitation, the ld. Consultant submits that the changed name was brought to the notice of the Department and, in fact, the Superintendent of Central Excise amended the L-4 Licence by incorporating the new name on 25-9-1987. Assessments were also finalised. There was therefore no suppression or mis-statement and the show cause notice issued on 17-5-1989 for the period 25-9-1987 to 30-7-1988 was clearly time barred as extended period provided in terms of Section 11A could not be applied.
3. Ld. DR submits that registration certificate indicating the date from which it was effective was obtained only subsequently and therefore the said date could not be a valid certificate for the purpose of Notification No. 175/86. In fact, the clarification indicating that the change was effective from 1-9-1987 was obtained subsequent to passing of the impugned order by the Additional Commissioner. In this view of the matter the impugned orders are correct in law as the requirement of Paragraph 4 of Notification No. 175/86 is not met.
4. We have heard both sides. We find that the certificate indicates the new name and also even the endorsement duly signed indicates that it is effective from 1-9-1987. The letter dated 29-1-1990 which was subsequently presented in........