9911796707
TMI Blog2008 (1) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... The capital goods were shifted to the another unit of the appellants which have also Central Excise registration certificate in their name. The Revenue proceeded to deny the Cenvat credit as capital goods had been shifted to another unit. The appellant s contention is that they had transported the capital goods by payment of Excise duty by debiting the Cenvat credit available with them. They had correctly followed the procedure and there was no violation of procedure for denying the credit in the matter. 2. The learned Counsel submits that the very issue is directly covered by the judgment rendered by this Bench in the case of M/s. Hewlett Packard (India) Sales (P) Ltd. [2007 (211) E.L.T. 263 (T) = 2007-TIOL-250-CESTAT-Bang.]. He placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials to the Bangalore unit whether condition of Rule 10(3) has not been satisfied? 6.1. Let us examine the above issues. Question of facts :- (a) The Hon ble High Court of Karnataka in the Company Petition No. 216/2003 has issued an Order dated 28th May, 2004 sanctioning the Scheme of Amalgamation of M/s. Hewlett Packard (India) Private Ltd. and M/s. Hewlett Packard India Sales Private Limited subject to certain conditions. The conditions and the actual Scheme are not very relevant for us now. The fact of amalgamation is on record. This fact has not been disputed. (b) After the order of the Karnataka High Court, the appellants informed the fact of amalgamation to the jurisdictional authorities. The Registration Certificate of the Pond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erged, leased or amalgamated business. (3) The transfer of the Cenvat credit under sub-rules (1) and (2) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise. The relevant provision is actually Rule 10(1). This Rule provides transfer of Cenvat credit lying unutilized in the event of shifting of a factory to another on account of amalgamation. It is also on record that all the production activities in the Pondicherry unit stopped after the amalgamation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 2004, and remaining unutilized on that day shall be allowed as Cenvat Credit to such manufacturer. Rule 11(2) speaks of a situation when a manufacturer opts for exemption under a Notification based on value or quantity of clearances in a financial year, in that situation, the manufacturer shall be required to pay an amount equivalent to the Cenvat credit in respect of inputs lying in stock or in process or contained in final products lying in stock on the date when such option is exercised and after deducting the above said amount if any balance is lying then that balance would lapse. Such a situation actually has not arisen in the present case. Therefore the conclusion of the Commissioner (Appeals), that the credit is not available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilized credit which is under transfer. In a situation where the credit on the stock of inputs is reversed, that Rule would not be applicable at all. 6.2. In view of the above position regarding the facts and law, we find that the appellants are rightly entitled for the transfer of unutilized credit to the tune of Rs. 15,85,47,476/-. Therefore the impugned order is liable to be set aside. Thus, we allow the appeal with consequential relief if any. In view of the above findings, the transfer of credit by the assessee to their own unit after payment of duty is held proper in terms of the above citation. Hence the impugned order is not correct in law. Respectfully following the judgment rendered in the case of Hewlett Packard (India) Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
