2008 (7) TMI 383 - HC - Central Excise

Cenvat Credit Transfer of Credit Rule 10 no input at the time of transfer Held that - in this case the input as such or in progress has not available as the input has already been put to use the same has been verified and the Deputy Commissioner of Central Excise satisfied about the genuineness of the same. In those circumstances of the case we are of the view that the finding arrived at by the Tribunal is in accordance with the requirement of the statute and the interpretation of the provision by the Department that there must be a transfer of input even if it is not available is extraneous to the statutory provision transfer of credit upheld.

Summary

Issues:
Transfer of unutilized CENVAT credit under Rule 10 of CENVAT Credit Rules.

Analysis:
The judgment pertains to an appeal filed by the Department challenging the Tribunal's order allowing the transfer of unutilized CENVAT credit to a new unit under Rule 10 of CENVAT Credit Rules. The assessee, a manufacturer of plastic multi-layer tubes, sought to transfer the credit to their new unit in Gujarat upon shifting their factory. The Department issued a show cause notice disallowing the transfer, leading to subsequent orders and appeals. The key question raised was whether the Tribunal's decision to permit the credit transfer was correct under Rule 10 of the CENVAT Credit Rules.

Upon reviewing the case, the Court examined Rule 10 of the CENVAT Credit Rules, which outlines the conditions for transferring CENVAT credit to a new factory or business premises due to factors like a change in ownership or location. The rule mandates the transfer of unutilized credit along with the stock of inputs or capital goods to the new site, subject to verification by the appropriate Central Excise authority. The Court referenced a prior judgment in a similar case where it was held that the transfer requirement is satisfied if the inputs or capital goods, on which credit was availed, are accounted for and verified, even if the physical transfer is not possible due to prior utilization.

Based on this interpretation, the Court found that the Tribunal's decision aligns with the statutory requirement of Rule 10. The Court dismissed the Department's appeal, emphasizing that the Department's insistence on physical transfer of inputs, even when not available due to prior use, goes beyond the statutory provision. Consequently, the Court upheld the Tribunal's order allowing the transfer of unutilized CENVAT credit to the new unit, as the verification and satisfaction of the Central Excise authority were deemed sufficient, despite the physical transfer not being feasible. The appeal was dismissed, and no costs were awarded in the case.