- (1.) We have heard Shri Bharat Ji Agarwal, Senior Advocate assisted by Shri R.R. Kapoor, learned counsel appearing for the appellant. Shri B.K.S. Raghuvansi appears for the department.
(2.) In this Central Excise Appeal under Section 35-G of the Central Excise Act, 1944, arising out of the judgement of Customs, Excise & Service Tax Appellate Tribunal dated 24.6.2004 in Appeal No. E/3352-3353/03-NB(B) (arising out of Order-in-Original No. 11/Commr/GZB/03 dated 30.7.2003 passed by the Commissioner, Customs & Central Excise Commissionerate: Ghaziabad), 'Hero Motors Limited' (formerly Majestic Auto Ltd)-the appellant has raised the following questions of law:- "1. Despite their being specific admission of the fact of the capital goods in question continued to be installed in their original position in a part of the Appellant Company, whether the Hon'ble Appellate Tribunal have committed an error in arriving at the finding of removal; 2. Whether the Hon'ble Tribunal was wrong in not following the settled law that for 'removal' as envisaged in the Modvat Rules for demand of duty, there has to be physical removal of the capital goods as provided under Rule 9 and 49 of Central Excise Rules; 3. Whether the Hon'ble Tribunal have committed a manifest error in upholding the demand of duty by invoking the extended period under Section 11-A of the Act by ignoring the law laid down by the Hon'ble Supreme Court in the case of CCE Jaipur vs. Raghuvar India Ltd, 2000 118 ELT 311; 4. Whether the demand of duty as upheld by the Hon'ble Appellant Tribunal by ignoring the law laid down in the case of Pushpaman Forgings, is correct; 5. Whether the imposition of penalty was correct in view of the facts and circumstances of the case; 6. Whether the order of the Hon'ble Tribunal confirming demand of interest is correct."
(3.) The facts giving rise to this appeal are that on the sanction of scheme of arrangement between M/s Hero Auto Limited (transferee company) and M/s Majestic Auto Limited (transferor company) by the Delhi High Court by its order dated 22.7.2004 in Company Petition No. 3 of 2004, all the properties, rights, and claims and undertaking relating and pertaining to the Ghaziabad business of the transferor company was transferred to the transferee company. M/s Hero Auto limited (transferee company), which changed its name to 'Hero Briggs & Stratton Auto Private Limited' as per fresh certificate of incorporation vide Certificate of Incorporation dated 14.9.2004 under Section 23 (1) of the Companies Act, 1956.;