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TMI Blog2006 (6) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... of inputs, there was no indication as to whether the Commissioner had applied his mind for reaching the satisfaction as contemplated under sub-rule (21) of Rule 57F, which corresponds to Rule 8(2) of Cenvat Rules. It is apparent that, no hearing was given to the appellant by the Commissioner before the making of the said order. No speaking order of the Commissioner has been placed on record. It is evident that the question of transferring stock of inputs could arise only if it exists in cases where capital goods on which credit has been availed have been duly accounted for. In other words, where the stock did not exist and the capital goods, on which the credit was availed, were duly accounted for, transfer of Cenvat credit lying unutilise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having another unit at Mumbai, where they were manufacturing, inter alia, tower packings. It was stated that the appellant had stopped manufacturing activities at Vadodara as informed by them to the department by letter dated 8-4-1998, and they intended to shift their plant and machineries to their Mumbai Unit. It was, further, informed that the appellant would clear their final products on payment of duty before surrendering the registration certificate. The applicant prayed for allowing transfer of the balance of the Modvat credit of Rs. 12,34,004/- and the balance in PLA lying in their factory. It appears that the Deputy Commissioner, Mumbai in the inter-departmental communication to the Dy. Commissioner, Vadodara sent on 6-6-2001, infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inputs as such or in process and where ownership and the inputs on which credit was availed of was duly accounted for to the satisfaction of the Commissioner. Reliance was placed on the decision of the Tribunal in Aar Aay Products Pvt. Ltd. v. CCE, New Delhi reported in 2003 (157) E.L.T. 40 (Tri.-Del), in which it was held that the said provision could not be reasonably extended to deny transfer of credit when there is physically no stock of goods at the old premises and there is nothing available to be transferred. This decision was followed in subsequent decisions of the Tribunal in New Chemi Industries Ltd. v. CCE, Mumbai-III reported in 2005 (191) E.L.T. 614 (Tri.-Mum.) and APCO Industries Ltd. v. Commissioner of Central Excise, Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring, nor a speaking order had been made in such cases. It was incumbent upon the Commissioner to have given a specific finding in connection with the appellant's plea that there was no stock of inputs which could be transferred, and whether the capital goods on which credit was availed were duly accounted for, as contemplated by Rule 8(2)of the Cenvat Rules. It is evident that the question of transferring stock of inputs could arise only if it exists in cases where capital goods on which credit has been availed have been duly accounted for. In other words, where the stock did not exist and the capital goods, .on which the credit was availed, were duly accounted for, transfer of Cenvat credit lying unutilised, should not be refused. For st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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