2025 (4) TMI 1531 - AT - Central Excise

Irregular availment of Cenvat Credit - violation of the provision of Rule 11 of Central Excise Rules 2002 and Rule 10 of Cenvat Credit Rules 2004 - HELD THAT - It is quite clear that in the instant matter there is no aspect of unutilized credit in consideration as evident from the language of the letter dated 12.01.2010 issued by M/s Henkel India Ltd. referred to in para-4 above. The impugned matter therefore cannot be construed to be a case within ambit of Rule 10 of the said Rules. Thus we are of the view that the Revenue has misdirected themselves by referencing the present issue within the ambit of Rule 10 on Cenvat Credit Rules 2004. The fact of the appellant stating to the audit query of availment of the credit in terms of Rule 10 ibid cannot be so held against them when the facts on records stand out clearly duly demarcated and distinguishable. It is an undisputed fact on record that there is no physical removal of any goods as the entire factory as a whole lock stock and barrel was purchased by the appellant and there is no shift of the premises involved. It is also not disputed that due duty was paid in respect of goods that were transferred to the appellant by reversing cenvat credit availed. The question that the goods were already in possession is therefore rendered futile and has no ramification with the availability of the credit till a legal title in the good accrues in favour of the appellant. The argument of the Revenue is therefore baseless. No credit can be denied if there is no dispute regarding the receipt of such inputs or capital goods and its utilization in the manufacture of final products. It is not disputed that the appellant had received the goods under consideration on which Cenvat Credit has been availed from M/s Henkel India Ltd. in accordance with the Asset Purchase Agreement entered between the two parties and as it is a clear that the title in goods only passed onto the appellant upon issuance of invoices and payment of duty as applicable on the said goods. The denial of credit therefore to the appellant is clearly erroneous and the argument of delay in issuance of the invoices without disputing the validity of transference of goods duty payment thereon and their ultimate utilization is at cross/contradicting purposes. The Asset Purchase Agreement is privy between the parties entering thereto and when they mutually decide to cast aside a delay of 1-2 days in issuance of the invoice it is not open for a third party to question the same on grounds of delay and presumed invalidation thereof. It is between the two consenting parties to overlook any such variation of the terms of contract to which both the sides have no qualms and reportedly agreed to. Extended period of limitation - HELD THAT - Once the agreement has been implemented and the goods come into possession and title of the appellant their duty payment not questioned their consumption and utilization in manufacture of goods not doubted all payment including duty payment made by the appellant the department cannot hold that such invoices were irregular and inadmissible for availment of credit. For reasons foregoing there are no justification in the department s stance of invoking extended period of limitation and charging the appellant with willful suppression more so when there are proper communications on record intimating the department from time to time. Conclusion - The appellant is entitled to avail Cenvat credit on the capital goods and inputs purchased from the transferor company as the invoices were valid and duty was duly paid. Appeal allowed.

Summary

The core legal questions considered by the Tribunal were:

1. Whether the appellant was entitled to avail Cenvat Credit on capital goods and inputs purchased from the transferor company despite the goods being already in possession of the appellant prior to issuance of invoices.

2. Whether the provisions of Rule 11 of the Central Excise Rules, 2002 and Rule 10 of the Cenvat Credit Rules, 2004 were violated by the appellant in availing the said credit.

3. Whether the delay in issuance of invoices by the transferor company invalidated the credit availed by the appellant.

4. Whether the Revenue was justified in invoking the extended period of limitation and charging the appellant with suppression and willful misstatement for not intimating the stock of inputs and capital goods transferred.

Issue-wise Detailed Analysis

1. Entitlement to Cenvat Credit on Purchase of Capital Goods and Inputs

The legal framework involved Rule 11 of the Central Excise Rules, 2002, which mandates that excisable goods shall be removed from a factory or warehouse only under an invoice signed by the owner or authorized agent, and Rule 10 of the Cenvat Credit Rules, 2004, which governs the transfer of unutilized Cenvat credit on transfer or change of ownership of a factory or business.

The Tribunal noted that the appellant had purchased the entire factory, including raw materials, work-in-progress, and plant and machinery, from the transferor company under an Asset Purchase Agreement (APA). Although possession of movable assets was delivered on the closing date, the title to these goods passed only upon issuance of invoices within seven working days.

The invoices were issued with a delay of about two days, but this delay was mutually consented to by both parties. The transferor company had also reversed Cenvat credit on the machineries and invoiced raw materials and packing materials accordingly. The appellant had subsequently obtained Central Excise registration and availed Cenvat credit on the duty paid as per the invoices.

The Tribunal emphasized that the appellant had received the goods and the title had passed upon issuance of the invoices, which were duly paid for. The credit availed related to duty paid on these goods used in manufacture of final products.

It was held that the fact that the goods were already in possession of the appellant prior to invoice issuance did not disentitle them from availing credit, as legal title had not passed before invoice issuance and payment. The Tribunal rejected the Revenue's contention that possession alone was insufficient without compliance with invoicing requirements.

2. Applicability of Rule 10 of Cenvat Credit Rules, 2004

Rule 10 allows transfer of unutilized Cenvat credit on transfer or change of ownership of a factory or business, provided the stock of inputs or capital goods is also transferred and accounted to the satisfaction of the authorities.

The Tribunal found that this provision was not applicable in the present case because the appellant was not claiming transfer of unutilized credit lying in the transferor's account. Instead, the appellant availed credit on duty paid by the transferor on sale of capital goods and inputs as per the APA. The transferor had reversed credit and paid duty accordingly before issuance of invoices.

The Tribunal observed that the Revenue had misdirected itself by invoking Rule 10 in this context. The appellant's claim was based on invoices issued for sale of goods with duty paid, not on transfer of unutilized credit balances.

3. Legality of Delay in Issuance of Invoices

The APA required invoices to be issued within seven working days of the closing date. The transferor company issued five invoices with a delay of about two days. Both parties mutually agreed to overlook this delay and proceeded with payment and transfer of title.

The Revenue argued that this delay invalidated the invoices and thereby the credit availed. The Tribunal rejected this argument, holding that the Asset Purchase Agreement was a contract between the parties, and such mutual consent to overlook the delay could not be questioned by the Revenue.

The Tribunal further noted that the Revenue had not raised any objection or questioned the validity of clearances made by the transferor company during the relevant period. Therefore, the delay in invoice issuance was not a valid ground to deny credit.

4. Allegations of Suppression and Willful Misstatement

The Revenue alleged that the appellant had suppressed information regarding stock of inputs and capital goods transferred and had willfully misrepresented facts by not intimating such transfers to authorities, thereby justifying invocation of extended limitation period and penalty.

The Tribunal examined the communications on record, including letters from the transferor company and the appellant, which had informed the department about the cessation of manufacturing and sale of assets, reversal of credit, and other relevant details well before the audit.

It was held that there was no evidence of suppression or misstatement. The appellant had complied with disclosure requirements and had not concealed any material facts. The charge of willful suppression was therefore unfounded.

Application of Law to Facts and Treatment of Competing Arguments

The Tribunal carefully distinguished the present case from those involving transfer of unutilized credit under Rule 10, clarifying that the appellant's case was based on purchase of goods with duty paid and invoices issued, not on transfer of credit balances.

The Revenue's reliance on Rule 10 was thus misplaced. The Tribunal also gave due weight to the contractual terms of the APA and the mutual consent of parties regarding invoice issuance delays, rejecting the Revenue's attempt to invalidate the transaction on this ground.

Regarding the possession of goods prior to invoice issuance, the Tribunal emphasized that possession alone does not confer title or right to credit; the legal transfer of title upon issuance of invoices and payment is decisive.

The Tribunal further rejected the Revenue's contention that the appellant's failure to intimate stock transfers constituted suppression, finding that the appellant had adequately informed the department and that no concealment had occurred.

Conclusions

The Tribunal concluded that the appellant was entitled to avail Cenvat credit on the capital goods and inputs purchased from the transferor company, as the invoices were valid and duty was duly paid.

The provisions of Rule 10 of Cenvat Credit Rules, 2004 were not applicable to the facts of the case.

The delay in issuance of invoices did not invalidate the credit, especially given the mutual consent of the parties.

The allegations of suppression and willful misstatement were unfounded and not supported by evidence.

The order of the lower authority denying credit and imposing penalty was set aside.

Significant Holdings

"The impugned matter, therefore cannot be construed to be a case within ambit of Rule 10 of the said Rules. Thus, we are of the view that the Revenue has misdirected themselves by referencing the present issue within the ambit of Rule 10 on Cenvat Credit Rules, 2004."

"The question that the goods were already in possession is therefore rendered futile and has no ramification with the availability of the credit, till a legal title in the good accrues in favour of the appellant."

"We find no reason to deprive the appellant of credit on such duty paid goods."

"The Asset Purchase Agreement is privy between the parties entering thereto and when they mutually decide to cast aside a delay of 1-2 days, in issuance of the invoice, it is not open for a third party to question the same on grounds of delay and presumed invalidation thereof."

"We do not find even a weak tether of support to hold onto the charge of willful suppression or misstatement, as borne out from the records."

These principles establish that Cenvat credit can be availed on purchase of capital goods and inputs upon valid issuance of invoices and payment of duty, notwithstanding possession prior to invoice issuance, and that mutual contractual arrangements between parties regarding invoice timing cannot be overridden by Revenue without valid legal basis.

The final determination was to set aside the impugned order denying credit and imposing penalty, allowing the appellant's appeal with consequential relief.