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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 ..... e owner of the factory is the appellant-company and it is only the shares of company which have been purchased by different persons - - The control of appellant-company has changed but the appellant-company continues to be the owner of the factory - Rule 8 is attracted only when the factory shifts to another site, or its ownership is transferred on account of sale to another per son or the ownership is changed on account of merger, amalgamation, lease or transfer of the factory to a joint venture, which is not the case here - Held that the Cenvat credit demand of Rs. 4,37,697.36 is not sustainable and the same is set aside - Decided in favour of assessee. - E/ 1669/2005-Excise - 377/2011-EX(PB) - Dated:- 28-4-2011 - R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY: Shri Praveen Shurma, Advocate,for the Appellant. Shri Sun ii Kurnar, DR,for the Respondent. [Per: Rakesh Kumar, Member (T)]. The appellants are engaged app in the manufacture of P.U. Foam Sheets/regular blocks chargeable to central excise duty under sub-heading No. 3921.11 of the Central Excise Tariff Act. They avail the facility of Cenvat credit of central excise duty paid on inputs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had immediately intimated the officers vide their letter dated 21-8-2003 about their accountmg method, that as per their accounting procedure, they issue a certain quantity of irregular blocks to the production line and debit agains the input account to the extent of blocks consumed in production of final products during a particular day and the remaining quantities of blocks remain in the raised manufacturing area, that therefore, at a given time, certain quantities of blocks will be available in the manufacture area which are part of the stock of inputs raw m and the officers had not taken such quantities of blocks during the time of phy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the M/s. Sheela Foam Pvt. Ltd, it is M/s. Sheela Foam Pvt. Ltd., which became the new owner, that since there is change of the ownership, the provisions of Rule 8(1) of Cenvat Credit Rules, 2002 would be applicable and before utilising the Cenvat credit lying in balance as on the date of change of ownership, the permission of the Asstt. Commissioner should have been obtained and since the same was not obtained, the credit has been wrongly utilised. 5. We have carefully considered the submissions from both the sides and perused the records. The first point of dispute is as to whether there was shortage of cenvated inputs P.U. Foam Irregular Blocks weighing 6578.27 Kgs. involving Cenvat credit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifts his factory to another site, (2) the factory is transferred from the existing owner to the another person on account of change of ownership, and (3) the factory is transferred on account of merger, amalgamation, lease or transfer of the factory to a joint venture with specific provision for transfer of liabilities of such factory. As per the provisions of Rule 8(1) in the above circumstances, the existing manufacturer shall be allowed to transfer the Cenvat credit lying unutilised in his accounts to such transferred, sold, merged, leased or amalgamated factory. As per sub-rule (2) of Rule 8, the transfer of the Cenvat credit under sub-rule (1) 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 a 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 Asstt. Commissioner/Deputy Commissioner of Central Excise. Thus, in the circumstances enumerated in sub-rule (1), in the case of transfer of ownership of the factory or shift to another site, the transfer of Cenvat credit lying unutilised to such transferred, sold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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