2017 (9) TMI 1434 - AT - Central Excise

CENVAT credit - shifting of units and transfer of credit - Rule 10 of the CCR, 2004 - Held that - On plain reading of Rule 10(1) of CCR, 2004, it is clear that if a manufacturer of the final product shifts his factory to another site, shall be allowed to transfer the Cenvat Credit lying unutilized in his accounts - the Adjudicating Authority examined the transfer of credit in details as permitted under Rule 10 of the Cenvat Credit Rules, 2004. The appellant categorically contended that they have not availed any credit on capital goods as revealed from the records. Therefore, the allegation against the appellant is without any substance - appeal allowed - decided in favor of appellant.

Summary

Issues:
Transfer of Cenvat credit due to factory shift, violation of Rule 10 of Cenvat Credit Rules, 2004, appeal against demand of Cenvat Credit, examination of transfer of credit by Adjudicating Authority, onus of proof on Revenue for credit availment.

Analysis:
The case involved the transfer of Cenvat credit due to the shifting of a factory, with the Revenue alleging a violation of Rule 10 of the Cenvat Credit Rules, 2004. The Adjudicating Authority initially dropped the proceedings, but the Revenue appealed to the Commissioner (Appeals), who set aside the Adjudication order. The main contention was whether the appellant was entitled to transfer the unutilized credit as per Rule 10(1) of the Cenvat Credit Rules, 2004.

Upon examination, it was found that the appellant had shifted Unit No.-I to Unit-II and transferred unutilized Cenvat credit. The Revenue argued that the transfer was in violation of Rule 10, as the necessity for transferring capital goods was not considered. However, the Adjudicating Authority had already examined the transfer of credit in detail, finding that the appellant had not availed any credit on capital goods. The appellant's claim was supported by records, and the Adjudicating Authority allowed the transfer of credit after due consideration.

The judgment highlighted that the onus of proof regarding credit availment lies with the Revenue, as per the decision in Commissioner of Customs Vs. Auto Ignition Ltd. The Commissioner (Appeals) was deemed to have erred in setting aside the Adjudication order without proper grounds. Consequently, the order of the Adjudicating Authority was restored, and the order of the Commissioner (Appeals) was set aside, allowing the appeal filed by the appellant.