2015 (7) TMI 339 - AT - Central Excise

Waiver of pre deposit - Credit of SAD - Held that - Admittedly the inputs were received on which duty was paid and credit was availed. It is also seen that the Revenue is not disputing the transfer of other unutilized accumulated credits to the new Unit by operation of Rule 10A. SAD was transferred to Unit No-2 and was no longer in the records of Unit No.1. Transfer of balance amount of credit to the new Unit especially when the sale is not unit-wise but the entire company was sold, is in accordance with the provisions of Rule 10A. As such irrespective of the fact whether the credit was lying with Unit-1 or Unit-2, we are of the view that the same is entitled to the transferred to the appellant. Denial of such credit to the appellant is not warranted. - appellant has a good prima facie case in its favour so as to allow the stay petition unconditionally - Stay granted.

Issues:
Transfer of Special Additional Duty (SAD) credit from one unit to another within the same manufacturer; Dispute regarding transfer of unutilized SAD credit to newly acquired company; Interpretation of Rule 10A and Rule 10 of CENVAT Credit Rules 2004.

Analysis:
The case involved a dispute over the transfer of Special Additional Duty (SAD) credit amounting to Rs. 12 crores from one unit to another within the same manufacturer. The appellant, M/s BILT Graphic Paper Products Ltd., Ballarpur, had transferred the entire SAD credit to their 2nd unit located at Kamalapuram, which utilized Rs. 5 crores of the credit, leaving an unutilized balance of Rs. 6.73 crores. Subsequently, the company was sold to M/s Ballarpur Industries Ltd, Kamalapuram, and the dispute arose regarding the transfer of the unutilized SAD credit to the newly acquired company. The Revenue contended that the credit was lying with Unit-2, which did not receive the inputs, and therefore, did not have the authority to transfer the credit. On the other hand, the appellant argued that since the inputs were received by Unit-1, and the entire company was sold to the appellant, the credit transfer was valid under Rule 10A of the CENVAT Credit Rules.

The Appellate Tribunal, after considering the arguments, found merit in the appellant's contention. It was observed that the inputs were received, duty was paid, and credit was availed by the units. The Revenue did not dispute the transfer of other unutilized accumulated credits to the new unit under Rule 10A. The SAD credit was transferred to Unit No-2 and was no longer in the records of Unit No.1. The Tribunal held that the transfer of the balance credit amount to the new unit, especially when the sale was of the entire company, was in accordance with Rule 10. Regardless of whether the credit was with Unit-1 or Unit-2, the Tribunal concluded that the credit was entitled to be transferred to the appellant. Therefore, the denial of such credit to the appellant was deemed unwarranted.

Based on the above analysis, the Tribunal held that the appellant had a good prima facie case in its favor, justifying the unconditional allowance of the stay petition. Consequently, the Tribunal ordered in favor of the appellant, allowing the stay petition unconditionally.

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