2010 (10) TMI 224 - AT - Central Excise

Cenvat credit Transfer of credit One unit closed down and all inputs and capital goods shifted to factory of other unit An unutilized cenvat credit to the extent of Rs. 9,74,895/-was available with M/s. Disha Industries. The same was transferred by them to M/s. Sheil Industries on the ground that as both the units are proprietary units with a common proprietor. - Held that - Merely because both are proprietary units with one common proprietor cannot be held to be the reason for considering both the units as one and the same. If that was the case, there was no need for the proprietor to float two different units under two different names - As the provisions of Rule 10 do not apply to the facts of the case in as much as it cannot be held that M/s. Disha Industries has shifted its factory to another site and there being no other provision for transfer of unutilized cenvat credit, such transfer was in contravention of the provisions of law. - Demand confirmed - penalty waived.

Summary

Issues: Transfer of unutilized cenvat credit between separate manufacturing units with a common proprietor under Rule 10 of the Cenvat Credit Rules, 2004.

Analysis:
1. Transfer of Cenvat Credit: M/s. Disha Industries and M/s. Sheil Industries, both engaged in manufacturing excisable goods with the same proprietor, transferred capital goods and inputs from the closed unit to the operational unit. An unutilized cenvat credit of Rs. 9,74,895/- was also transferred to M/s. Sheil Industries, claiming it would automatically transfer due to common ownership and relocation. Lower authorities rejected this claim, leading to the present appeal.

2. Rule 10 of Cenvat Credit Rules: The appellate authority examined Rule 10, which allows the transfer of unutilized cenvat credit when a manufacturer shifts the factory to another site or due to a change in ownership. The rule does not explicitly cover the scenario of transferring credit between separate units with a common proprietor. The appellant argued that since the proprietor owned both units, the credit should transfer, but authorities disagreed, citing separate registrations and locations for each unit.

3. Distinct Manufacturing Units: The appellate authority upheld the lower authorities' decision, emphasizing that M/s. Disha Industries and M/s. Sheil Industries are distinct manufacturing units at different sites, each separately registered with the Central Excise Department. The units are liable for excise duties independently, and evasion charges against one unit cannot be imposed on the other, even with a common proprietor. The existence of two separate units under different names indicates distinct legal entities.

4. Non-Compliance with Law: Since Rule 10 did not apply to the case, as M/s. Disha Industries did not shift its factory to a new site, the transfer of unutilized credit to M/s. Sheil Industries was deemed a violation of the law. The demand against M/s. Sheil Industries was upheld, directing them to reverse or pay the credit, which would lapse for M/s. Disha Industries due to closure. The penalties imposed on individuals were overturned due to the interpretational nature of the issue and the intimation of credit transfer to the Revenue.

5. Conclusion: The judgment clarifies that the transfer of unutilized cenvat credit between separate manufacturing units with a common proprietor is not permissible under Rule 10 unless specific conditions like factory relocation or change in ownership are met. The decision underscores the legal distinction between separate manufacturing entities, even if owned by the same individual, and upholds the importance of compliance with excise laws in credit transfers.