2017 (3) TMI 551 - AT - Central Excise

CENVAT credit - change of name of manufacturer - Held that - the machinery on which credit was availed by the appellant was used by them in the process of manufacture - the appellant has submitted copy of Fresh Certificate of Incorporation Consequent upon Change of name issued by the Registrar of Companies, West Bengal which clearly and in unambiguous manner bring out that only the name of M/s.Sitara Metals (P) Ltd., has been changed to M/s.Sitara Conductors & Cables Private Limited. Thus, there is no reason to believe that M/s.Sitara Metals (P) Ltd. and M/s.Sitara Conductors & Cables Private Limited (the appellant herein) are different persons and thus the invoices issued in the name of M/s.Sitara Metals (P) Ltd., prior to the change in name, has to be taken as that issued in favour of M/s.Sitara Conductors & Cables Private Limited - all the five (5) disputed invoices have been issued within 05.03.2008 which is prior to change in name since the change in name had taken place on 15.05.2008 - credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Disputed availment of Cenvat credit by the appellant against machineries.
2. Alleged wrong availment of credit amounting to ?18,009 in the first year.
3. Aspect of limitation in the Show Cause Notice.
4. Appeal against the Order-in-Appeal No.03/KOL-II/2013.

Analysis:
1. The appellant, a manufacturer of aluminum products, procured machineries for wire drawing when registered as a dealer, later changing the name to M/s.Sitara Conductors & Cables Pvt.Ltd. and transferred the machineries to their manufacturing unit, availing Cenvat credit against the invoices. The Adjudicating Authority dropped proceedings but ordered recovery of ?9,004.50 with interest for erroneous credit. The Commissioner(Appeals) allowed the appeal, citing improper documents for credit availed. The appellant argued that the change in name does not affect credit eligibility, supported by a Tribunal decision. The Revenue contended that credit was inadmissible as the invoices were in the dealer's name before registration as a manufacturer.

2. The Order-in-Original observed a clerical error in availing ?18,000 credit, agreeing to pay interest. The appellant's balance sheets indicated no mala fide intent, and the change in name was substantiated by a Certificate of Incorporation. The appellant's submission of the Certificate supported the continuity between the old and new names, making the invoices issued under the old name valid for credit. The Tribunal found no dispute in credit eligibility based on the name change timeline and set aside the impugned order, allowing the appeal.

3. The Adjudicating Authority's observation on limitation regarding the Show Cause Notice being time-barred due to the delay between invoice verification and notice issuance was crucial. The Tribunal noted the limitation issue and found the delay significant, supporting the appellant's argument against the time-barred notice, ultimately leading to the appeal's allowance.

4. The appellant's appeal against the Order-in-Appeal No.03/KOL-II/2013 was based on the Commissioner(Appeals) decision to disallow credit due to improper documents. The Tribunal analyzed the facts, including the name change and eligibility of credit, and found in favor of the appellant, setting aside the previous order and allowing the appeal.