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TMI Blog2011 (4) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... edit of central excise duty paid on inputs and capital goods used in or in relation to the manufacture of the finished goods as per the provisions of Cenvat Credit Rules, 2002. The appellant is a Private Limited Company. In May, 2003, the shares of the appellant-company were purchased by Shri Rahul Gautam, Shri Praduman Patel and M/s. Sheela Foam Pvt. Ltd. The name of the company registration certificate regarding change of the management in the wide their latter dated 28-7-2003 which was allowed on the same day However, as on 26-5-2003, the date on which the shares of the appellant-company were purchased by Shri Rahul Gautam, Shri Praduman Patel and M/s. Sheela Foam Pvt. Ltd., there was Cenvet credit balance of Rs. 4,37,697/- in the RG-23A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit demand of Rs. 5,21,899/- was confirmed along with interest; and (b) Penalty of equal amount was imposed on the appellant under Rule 13 of the Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 1.4 On appeal being filed by the appellant-company to .the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal No. 55/CE/CHD/2005, dated 22-2-2005 upheld the order-in-original and dismissed the appeal. It is against this order of the Commissioner (Appeals) that the present appeal has been filed. 2. Heard both the sides. 3. Shri Praveen Sharma, Advocate, ld. Counsel for the appellant, assailing the impugned order pleaded that there was no shortage of cenvated inputs and the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal entities from that of shareholders, that even if it is presumed for the sake of argument that there was change of ownership and Rule 8 of the Cenvat Credit Rules, 2002 was applicable, no prior permission of the Commissioner, or Asstt. Commissioner was required for utilising the credit lying in balance and in this regard, the reliance is placed on judgment of the Tribunal in the case of Solaris Bjo-Chemicals Ltd. v. CCE reported in 2005 (179) E.L.T. 216 (Tribunal), that there was no mala fide on the part of the appellant and all the activities were within the knowledge of the department including the change of Directors and shareholders, that there was no suppression on the part of the appellant and in such circumstances, the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 84,202/-. On going through the records, we find that verification of the stock of inputs had been done in presence of Shri Dinesh Godiyal, Asstt. Manager of the appellant-company and at the time of stock taking, the stock which was physically available was found to be 15272 Kgs. As against the balance of 21850.27 Kgs. in RG-23A Part-I Register. Shri Dinesh Godiyal at that time was fully satisfied with the manner of stock taking and had not raised any objection and at that time, he could not give any explanation about the shortage, other than saying that the shortage may be due to short receipt of the raw materials over a period of time and also due to shrinkage. At that time, he did not state that there is some stock of Irregular P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merged, leased or amalgamated factory. (2) The transfer of the Cenvat credit under sub-rule (I) 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 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 Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be." 8. From a perusal of this rule, it will be seen that the same is applicable in three circumstances - (1) when the manufacturer of the final products shifts his factory to another site, (2) the factory is transferred from the existing owner to the another person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only by the Asstt. Commissioner/Dy. Commissioner subject to fulfilment of certain conditions to his satisfaction. However, we find that in this case, the owner of the factory is the appellant-company - M/s. Auora Foam Pvt. Ltd. and it is only the shares of M/s. Auora Foam Pvt. Ltd. which have been purchased by different persons - Shri Praduman Patel, Shri Rahul Gautam and M/s. Sheela Foam Pvt. Ltd. and as such, the owner of the factory still remains the appellant-company, M/s. Auora Foam Pvt. Ltd. It is only the shareholders and directors of Mis. Auora Foam Pvt. Ltd., who have changed. Even the agreement of sale between M/s. Auora Foam Pvt. Ltd. and M/s. Sheela Foam Pvt. Ltd. mentions the takeover of M/s. Auora Foam Pvt. Ltd. by M/s. Sheela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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