2020 (9) TMI 301 - AT - Central Excise

Transfer of CENVAT Credit - closure of Delhi unit merger with its Baddi unit - Rule 10 of CCR - HELD THAT - Admittedly appellant have maintained proper record of their transactions including taking of cenvat credit on the eligible inputs. Appellant have claimed transfer/ shifting of their Delhi unit to their Baddi unit. But from the finding of the Court below, it is found that no finding have been recorded with respect to the claim of shifting of Delhi unit to Baddi unit and its consequent merger with the Baddi unit. Shifting of a factory to another site is the primary condition under Rule 10(1) alongwith liabilities of the Delhi unit, if any, and Rule 10(3) provides for additional condition that such transfer/ unit or factory should include transfer of stock of input as such or in process, or the capital goods to the new site and such transferred goods are duly accounted for to the satisfaction of the Central Excise Authority. Thus, prima-facie with respect to claim of the appellant or request for transfer of cenvat credit from Delhi unit to Baddi unit requires that a finding to be recorded by the Central Excise Authority having jurisdiction over the Baddi unit to record the finding of transfer / shifting of Delhi unit to Baddi and to record a further finding in regard to transfer of inputs or capital goods etc. and proper accountal of the same. For such purpose, the Adjudicating Authority of the Baddi unit can call for proper report from the jurisdictional Central Excise Authority of the Delhi unit - If the conditions are satisfied, the appellant is entitled to the transfer of cenvat credit to their Baddi unit. Matter remanded to the adjudicating authority to pass a denovo order recording finding on the two aspects and thereafter pass consequential order - appeal allowed by way of remand.

Summary

Issues:
Transfer of unutilized credit from one unit to another, disallowance of cenvat credit, penalty imposition, entitlement to cash refund of unutilized credit, proper record maintenance, shifting of factory to another site, conditions for transfer of cenvat credit.

Transfer of Unutilized Credit:
The appellant sought to transfer unutilized credit from the Delhi unit to the Baddi unit. The Commissioner (Appeals) upheld the disallowance of cenvat credit, stating that as the appellant was clearing their production under an exemption notification, they were not entitled to avail cenvat credit. The appellant argued that the conditions for transfer of cenvat credit were fulfilled based on Tribunal decisions and relied on High Court judgments to support their claim. The Tribunal found that no finding had been recorded regarding the shifting of the Delhi unit to the Baddi unit. It was determined that a proper finding by the Central Excise Authority was necessary to confirm the transfer of inputs or capital goods and their proper accountal for the transfer of cenvat credit.

Disallowance of Cenvat Credit and Penalty Imposition:
The cenvat credit demand was confirmed in the original order, disallowing the transfer of credit and imposing a penalty under Rule 15 of the Cenvat Credit Rules. The Commissioner (Appeals) set aside the penalty, noting no suppression or misinformation by the appellant. However, the disallowance of cenvat credit was upheld based on the appellant's clearance of goods under an exemption notification. The Tribunal allowed the appeal by way of remand, directing the adjudicating authority to pass a denovo order after verifying the conditions for transferring the cenvat credit.

Entitlement to Cash Refund of Unutilized Credit:
The appellant requested a cash refund of the unutilized credit, citing the closure of their factory and inability to utilize the credit. Various decisions were referenced to support the claim for a cash refund, emphasizing that the refund of unutilized credit is permissible under certain circumstances. The Tribunal noted that Rule 5 of the Cenvat Credit Rules provides for a refund of unutilized credit in specific cases, such as export of finished goods.

Proper Record Maintenance and Factory Shifting:
The appellant maintained proper records of transactions, including cenvat credit on eligible inputs. The Tribunal highlighted the importance of verifying the shifting of the Delhi unit to the Baddi unit and the transfer of inputs or capital goods as part of the conditions for transferring cenvat credit. The Tribunal emphasized the need for the Central Excise Authority to confirm these aspects before allowing the transfer of credit.

In conclusion, the Tribunal allowed the appeal by way of remand, emphasizing the necessity for proper verification of the shifting of the factory and transfer of inputs or capital goods before transferring the cenvat credit. The judgment highlighted the importance of maintaining accurate records and complying with the conditions set forth in the Cenvat Credit Rules for the transfer of unutilized credit between units.