2018 (2) TMI 701 - AT - Central Excise

Transfer of accumulated CENVAT credit to other unit - denial on the ground that the same was availed by them after surrender of their registration - Held that - if the said credit was available to the appellant prior to their registration, the fact of surrendering of licence should not be adopted and the appellant request to transfer the credit should not be denied on such hyper technical grounds. It is well settled law that substantive benefit should not be denied on the ground of procedural and technical violations, if an assessee is otherwise entitled to the same. Inasmuch as the impugned orders have not verified the above fact, it is fit to set aside the impugned order and remand the same for verification of the above issue - appeal allowed by way of remand.

Summary

Issues:
Transfer of unutilized cenvat credit upon shifting manufacturing unit.

Analysis:
The appeal involved the issue of transferring accumulated unutilized cenvat credit amounting to ?26,11,388/- by an appellant engaged in manufacturing detergent cake and powder upon shifting their unit. The appellant surrendered their license as they relocated their manufacturing unit. The authorities allowed the transfer of credit amounting to ?14,04,432/-, which was available at the time of surrender, but denied the balance credit stating that the appellant was not entitled to it as they were no longer an assessee under Rule 9 of the Central Excise Rules, 2002.

Proceedings were initiated against the appellant through a show cause notice, resulting in the denial of the transfer request. The original adjudicating authority did not impose any penalty, and the Commissioner (Appeals) upheld the decision, leading to the present appeal. The appellant contended that they were entitled to the credit even before surrendering their registration, citing the Cenvat Credit Rules and relevant case laws to support their argument.

The tribunal, after considering the submissions and the impugned order, noted that the denial of credit was based on the grounds that it was availed after the surrender of registration. The tribunal emphasized that substantive benefits should not be denied due to procedural or technical violations if the assessee is entitled to them. The crucial question was whether the credit was available to the assessee before the registration surrender and related to goods or services received before that event. Since the impugned orders did not verify this crucial fact, the tribunal set aside the order and remanded the case for further verification. If the appellant was entitled to the credit before surrendering registration, the fact that it was not utilized before surrender should not impact their right to transfer it to the new unit.

Therefore, the tribunal allowed the appeal by way of remand, highlighting the importance of verifying the availability of credit before the registration surrender to determine the appellant's entitlement to transfer the unutilized cenvat credit to their new manufacturing unit.