2000 (12) TMI 126 - AT - Central Excise

Summary

Issues:
1. Whether the merger of Unit No. 1 with Unit No. 2 constitutes shifting of the plant or factory to another site.
2. Whether the credit taken on 29-8-94 can be transferred when the factory closed its operations in June '94.
3. Whether cash refund of the credit on the strength of the 57E certificate can be paid.

Analysis:

1. The Commissioner (Appeals) held that the dispute centered on whether the merger of Unit No. 1 with Unit No. 2 constituted shifting the plant or factory to another site. The Commissioner emphasized the difference between 'site' and 'factory,' rejecting the appellant's argument that sought to eliminate this distinction. It was concluded that the appellants did not merely shift the plant or factory of Unit No. 1 to another site but to another factory owned by them. The appeal was dismissed based on this distinction, as 'site' could not be equated with 'factory.'

2. The issue of transferring credit taken on 29-8-94 when the factory closed its operations in June '94 was analyzed. Rule 57F(7) allows transfer of unutilized credit on account of shifting the plant or factory to another site. The Asstt. Collector rejected the request for transferring the credit, stating that the case involved merger/amalgamation where Unit 1 lost its identity, contrary to the conditions of Rule 57F(6). The Tribunal remanded the matter for reconsideration under Rule 57F(7) and Rule 57E. The Commissioner in the de novo proceedings rejected the transfer request, leading to the appeal.

3. Regarding the cash refund of the credit based on the 57E certificate, the appellant argued for the refund under Rule 57E, citing it as a self-contained provision. The appellant contended that the closure of the Bangalore packing station necessitated a cash refund as adjustment in the credit account was not feasible. The appellant sought cash refund due to the excess duty paid by the Rajamundry factory. The Departmental Representative argued against the refund, stating that the credit had already been transferred, and there was no provision for a second transfer.

4. The Tribunal analyzed the provisions of Rule 57F(7) and Rule 57E to determine the transfer and refund eligibility. It was found that the credit taken on 29-8-94 could not be transferred as the factory had closed its operations in June '94, and the credit was not unutilized at the time of closure. The Tribunal also noted that Rule 57E did not provide for cash refunds, further supported by subsequent sub-rules. Consequently, the appeal was rejected based on these findings.