2005 (9) TMI 22 - AT - Central Excise

Transfer of Cenvat Credit upon change in management once appellant has proof that he has approached the department for permission and waited for two years, but not communication from the authorities concerned either granting or refusing the permission. It shall be deemed to have been granted

Summary

Issues:
Transfer of unutilized Modvat credit during company takeover without explicit permission from authorities.

Analysis:
The appeal was filed by M/s. Hindustan Lever Ltd. against the Order-in-Appeal passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur. The appellants took over M/s. Brooke Bond Lipton (India) Ltd. and continued its manufacturing activities. They requested the transfer of unutilized Modvat credit from the previous company to their account but did not receive explicit permission from the Department. After waiting for more than two years, the appellants transferred the credit and informed the Department. A Show Cause Notice was issued questioning the transfer. The issue was compared to a previous case where it was held that as long as the operations and goods remain the same post-takeover, the eligibility for Modvat credit continues. It was noted that the goods remained the same in this case as well, thus the previous decision applied. The appellants had sought permission in advance, but no communication was received from the authorities. The Tribunal held that in the absence of a response, permission shall be deemed to have been granted after a reasonable time, and therefore, allowed the appeal.

This judgment clarifies the principles regarding the transfer of Modvat credit during a company takeover. It emphasizes that if the operations and goods remain consistent post-takeover, the eligibility for Modvat credit continues. The case highlights the importance of seeking permission from authorities, but also addresses the situation when no explicit communication is received. The Tribunal's decision provides guidance on the deemed grant of permission in such circumstances, ensuring fairness and adherence to procedural requirements.