2013 (11) TMI 1182 - AT - Central Excise

Transfer of Credit under Rule 10 of Cenvat credit Rules Waiver of Pre-deposit - the appellant took the Cenvat credit of that amount in their RG-23A account after the new registration was issued to them Held that - The condition of transfer of credit under Rule 10 of the Cenvat Credit Rules is that at the time of change of ownership from one manufacturer to another manufacturer, the inputs and capital goods in respect of which the Cenvat credit have been availed by the previous owner, are also transferred to the new owner - Prima facie there is no clear cut evidence on this point - this aspect can be examined only at the time of final hearing - this is not the case for total waiver - The appellant directed to deposit an amount Rupees Twenty Five Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.

Summary

Issues:
Transfer of Cenvat credit during factory takeover without prior permission under Rule 10 of Cenvat Credit Rules, 2004.

Analysis:
The appellant took over a factory and claimed Cenvat credit for the stock of inputs from the previous owner. However, the Central Excise authorities issued a show cause notice for recovery of the Cenvat credit, stating that prior permission was required under Rule 10(3) of the Cenvat Credit Rules, which had not been obtained. The original Adjudicating Authority confirmed the demand, interest, and imposed a penalty. The appellant's argument that the stock of inputs was verified by the authorities before registration was not accepted by the Commissioner (Appeals). The appellant sought a waiver of pre-deposit for the appeal.

The appellant argued that prior permission for Cenvat credit was not required as the stock of inputs was verified by the authorities before registration, citing relevant Tribunal judgments. The respondent opposed the stay application, claiming lack of evidence regarding the availability of the stock of inputs at the time of takeover. The Tribunal noted the requirement under Rule 10 that the inputs and capital goods must be transferred to the new owner for Cenvat credit transfer. The Tribunal found insufficient evidence on this point but directed the appellant to deposit a specified amount pending final hearing, with the balance waiver subject to compliance.

In conclusion, the Tribunal directed the appellant to deposit a specified amount pending the final hearing to determine the transfer of Cenvat credit under Rule 10. The waiver of the balance amount was subject to compliance within the stipulated period, with recovery stayed until the appeal's disposal. The decision emphasized the necessity of transferring inputs and capital goods for Cenvat credit transfer during a change of ownership, requiring further examination at the final hearing.