2015 (6) TMI 224 - AT - Central Excise

Wrong availment of modvat credit - capital goods - violation of Rule 57Q and 57(T) of CER - Held that - appellants duly intimated the Department prior to the importation of capital goods, which is mandatory for availing capital goods credit. They have also intimated that the said capital goods were shifted to unit-II which is on record. The allegation made in the adjudication order and in the impugned order that the appellants have not received the capital goods is not well founded with any supported evidence. There is no verification report either from the Range Superintendent or from the division authorities concerned after the receipt of the first intimation in 1997 & 1999. Without any investigation and proof of evidence contrary to the intimation and documents on record the adjudicating authority concluded that there is no receipt of capital goods in unit-I. I find that even though the capital goods were imported in the year 1997 and 1999, there is no record on availing credit either by unit I or unit II. Appellants have reversed the entire credit availed by while shifting on 30.08.99 to their unit-II, which is clearly reflected in the invoice dated 31.08.99 and the appellants have paid the duty by reversal of RG23 (c) part2 006 on 31.08.99. It is further supported by RT12 returns filed for the month of August 99 wherein both availment of debit of RG23 (c) part 2 has been reflected in the returns. Rule 57Q (8) clearly stipulates removal of capital goods before being installed in the factory on payment of appropriate duty. - appellants have removed the capital goods from unit-I to unit-II without installing the same and reversed the entire credit. Therefore, reversal of credit is in conformity with Rule 57Q(8) of CER,1944. In the case of Pooja Forge Ltd (supra), on identical issue the DB of the Tribunal has allowed the credit on capital goods where the capital goods were removed from unit-I to unit-II of the appellants own units. - appellants followed the procedure correctly in conformity with Rule 57Q, 57(T) and 57(S) and rightly availed and reversed the same at the time of removal of capital goods to their unit-II. Accordingly, the impugned order disallowing credit availed against the first appellant and imposition of equivalent penalty is set aside. - Decision in the case of Pooja Forge Ltd (2006 (1) TMI 290 - CESTAT, NEW DELHI) followed - Decided in favour of assessee.

Summary

Issues:
1. Change of cause title of the company from UMS Radio Factory Limited to UMS Technologies Ltd.
2. Disallowance of credit and imposition of penalty on unit-I and unit-II for irregular availment of credit.
3. Appeal against the order of the lower appellate authority reducing penalty on unit-II.

Analysis:
1. The appellants filed applications for changing the cause title of their company, which was allowed based on the certificate of incorporation issued by the Registrar of Companies. The appeals were then taken up for disposal.

2. The appeals arose from the disallowance of credit and imposition of penalties on unit-I and unit-II for irregular availment of credit on imported machines. The machines were shifted between the two units and credits were availed and reversed accordingly. The department issued a show cause notice, leading to penalties imposed by the adjudicating authority. The lower appellate authority modified and reduced the penalty on unit-II, which was appealed against.

3. The main issue was the wrong availment of modvat credit by unit-I on capital goods not used by them, which were subsequently transferred to unit-II. The appellants argued that they followed all necessary procedures and intimated the department about the shifting of capital goods. The department contended that the appellants never received the capital goods in their factory and availed credit only on paper.

4. After considering submissions and records, it was found that the appellants duly intimated the department before importing capital goods and shifted them between units as per regulations. The authorities had no evidence to support the claim that the capital goods were not received by unit-I. The appellants availed and reversed the credit in accordance with the rules.

5. Referring to a previous Tribunal decision, it was concluded that the appellants correctly followed the procedures regarding the availment and reversal of credit on capital goods. The impugned order disallowing credit and imposing penalties was set aside, and both appeals were allowed.

This detailed analysis of the judgment covers the issues of changing the cause title of the company and the disallowance of credit with penalties, providing a comprehensive understanding of the legal proceedings and the final decision reached by the Appellate Tribunal CESTAT CHENNAI.