2023 (12) TMI 682 - AT - Service Tax

Recovery of CENVAT Credit alongwith interest and penalty - recovery sought on the ground of its erroneous availment - non-compliance of sub-Rule 3 of Rule 10 of CCR. Contention of the Department was that sub-Rule, 3 was not followed which permits transfer of CENVAT Credit only after verification of stock of inputs or capital goods which was to be transferred. HELD THAT - From the discussion made by the Adjudicating Authority who gave account of each credit taken on input services in a table annexed to 11.3, it is very much clear that only on the credits accumulated from input services, transfer was effected and Rule 10(3) has not dealt with such a situation, since it deals with stock of inputs or the capital goods. However, going by sub-Rule-2 it is manifestly clear that entire CENVAT Credit lying unutilised in the account of the business unit is to be transferred to the new business unit and the same is fortified by the fact that sub-Rule-3 had not restricted availment of credits on input services which were only available with the transferor business unit - there are no irregularity in the order passed by the Adjudicating Authority and, therefore, the observation made by the Commissioner (Appeals) in para 15 of the order that Rule, 10(3) of the CENVAT Credit Rules, 2004 permits CENVAT Credit of inputs or capital goods alone to be transferred is not inconformity to the law. Judicial decision on this issue is consistent from CESTAT up to the level of Hon'ble Apex Court that Rule, 10 does not require that Assessee can transfer the credit corresponding only to the quantum of inputs transferred to the new factory since it permits the Assessee to transfer the entire available credits alongwith inputs and capital goods in stock at the factory to the new location - reliance placed in COMMISSIONER VERSUS CESTAT 2009 (2) TMI 824 - SC ORDER . In view of the consistent decisions of this Tribunal that has been affirmed by the Hon'ble Supreme Court and in carrying forward the judicial precedent set on the issue and having regard to the fact that no stipulation is available under Rule, 10 for transfer of credit accumulated from input services. The order passed by the Commissioner of Customs, Central Excise GST (Appeals), Nagpur is hereby set aside - Appeal allowed.

Summary

Issues involved:
The issue involves the recovery of CENVAT Credit of Rs.10,84,210/- under Rule 14(1)(ii) of the CENVAT Credit Rules, 2004, along with interest and penalty, challenged by the Appellant based on the transfer of credit from a proprietorship concern to a partnership firm.

Summary of Judgment:

Issue 1 - Compliance with Rule 10 of CENVAT Credit Rules, 2004:
The case involved the transfer of unutilized CENVAT Credit from a proprietorship concern to a partnership firm. The Department contended that Rule 10(3) regarding the transfer of stock of inputs or capital goods was not followed. However, the Adjudicating Authority found that the credit availed pertained only to input services, not inputs or capital goods, and ruled in favor of the Appellant. The Tribunal upheld this decision, noting that Rule 10 does not restrict the transfer of credits based on the quantum of inputs transferred, allowing for the transfer of entire available credits. The Tribunal cited previous judicial decisions supporting this interpretation.

Key Points:
- The Adjudicating Authority found that Rule 10(3) did not apply as the credit availed was on input services, not inputs or capital goods.
- The Tribunal affirmed that Rule 10 allows for the transfer of the entire available credits, not limited to the quantum of inputs transferred.
- Previous judicial decisions supported the interpretation that Rule 10 permits the transfer of all available credits.

Decision:
The Tribunal allowed the appeal, setting aside the order of the Commissioner of Customs, Central Excise & GST (Appeals), Nagpur, with consequential relief, if any.

Conclusion:
The judgment clarified the application of Rule 10 of the CENVAT Credit Rules, 2004 in the context of transferring unutilized CENVAT Credit, emphasizing the permissibility of transferring all available credits without restriction based on the quantum of inputs transferred.