2019 (2) TMI 1102 - AT - Service Tax

Transfer of credit - amalgamation - non-compliance with Rule 10 of the Cenvat Credit Rules - information regarding surrender of registration with Chennai and Mumbai not provided - case of Revenue is also that Transfer could not take place before reversing the credit in the accounts of Chennai and Mumbai entities - Held that - The show cause notice proposed to deny credit on the ground that no prior permission stands taken by the appellant. However, the said issue stands accepted by the Adjudicating Authority and as such it was not open to the Revenue to deny the credit on further allegations - The legal issue that Adjudicating Authority cannot go beyond the show cause notice is well settled by catena of judgments. Otherwise also, the credit was transferred from Chennai and Mumbai after intimating the Service Tax Authorities, under the orders of the Hon ble High Court and as such cannot be questioned by the Revenue. The scheme of amalgamation has clearly provided that all the assets of the Transferor Companies would be available to the Transferee Company. Inasmuch as the transfer of the unutilized credit has been done under the approval of the Hon ble High Court as per the scheme sanctioned by the High Courts, the denial of the same is neither justified nor warranted. Appeal allowed - decided in favor of appellant.

Issues:
1. Transfer of credit in the case of amalgamation of companies.
2. Compliance with Rule 10 of the Cenvat Credit Rules.
3. Requirement of prior permission for transfer of credit.
4. Denial of credit by the Department.
5. Allegations of suppression by the Appellant.
6. Adjudicating Authority's power to go beyond show cause notice.

Analysis:

Issue 1: Transfer of credit in the case of amalgamation of companies
The case involved the amalgamation of three entities with a common holding company. The scheme of amalgamation was approved by the High Courts, and the assets and liabilities of the companies were transferred to the transferee entity. The appellant intimated the Service Tax Department about the transfer of credit, and the credit was duly shown in statutory returns. The audit confirmed the availability of credit with the entities, and the appellant applied for centralized registration, which was granted. The Tribunal held that the transfer of credit under the approved scheme of amalgamation was valid and could not be questioned.

Issue 2: Compliance with Rule 10 of the Cenvat Credit Rules
The Department alleged non-compliance with Rule 10, specifically regarding the surrender of registration with the Chennai and Mumbai authorities before transferring the credit. The appellant argued that Rule 10 only required accounting for credit on inputs or capital goods and that no permission was needed for credit transfer. The Tribunal accepted the appellant's submission that no permission was required for credit transfer under Rule 10.

Issue 3: Requirement of prior permission for transfer of credit
The Department issued a show cause notice alleging that the appellant did not obtain prior permission for credit transfer. The Tribunal held that the Adjudicating Authority cannot go beyond the show cause notice and deny credit on grounds not mentioned in the notice. The Tribunal referenced legal precedents to support this principle and set aside the impugned orders on this ground.

Issue 4: Denial of credit by the Department
The Department sought to deny the credit transfer based on alleged violations of Rule 10. However, the Tribunal found that the transfer was done under the approval of the High Courts as per the amalgamation scheme and that the denial of credit was not justified. The Tribunal noted that there was no dispute about the availability of credit with the transferor and referenced previous Tribunal decisions to support its findings.

Issue 5: Allegations of suppression by the Appellant
The Department accused the appellant of suppression and sought to confirm the demand with penalties and interest. However, the Tribunal found no merit in the Department's stand and set aside the impugned orders, providing consequential relief to the appellant.

Issue 6: Adjudicating Authority's power to go beyond show cause notice
The Tribunal emphasized that the Adjudicating Authority cannot confirm demands based on grounds not raised in the show cause notice. Legal precedents were cited to support this principle, and the Tribunal set aside the impugned orders on this basis.

In conclusion, the Tribunal ruled in favor of the appellant, upholding the validity of the credit transfer under the approved amalgamation scheme and rejecting the Department's allegations of non-compliance and suppression. The impugned orders were set aside, providing relief to the appellant.

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