9911796707
TMI Blog2006 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... Another unit in Pondicherry, existed in the name of Hewlett Packard India (Pvt.) Ltd., for manufacture of Computers and Printers (Pondicherry unit for short). The Pondicherry unit availed input credits for the manufacture of Computers and Printers. There was amalgamation of the Pondicherry unit with the appellant unit vide the order dated 28-5-2004 of the High Court of Karnataka. The Pondicherry unit stopped production w.e.f. October 2004 onwards and transferred the unutilized credit to the Bangalore Unit. On the direction of the Department, the credit taken was reversed. Thereafter, the appellants submitted a letter dated 28-12-2005 to the Pondicherry authorities and requested permission to transfer the available Cenvat credit balance of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded that the final products manufactured by the Pondicherry unit were already exempted w.e.f. 9-7-2004. With the above observations, he has remanded the matter to the lower authority to issue a speaking order. The appellants are highly aggrieved over the impugned order of the Commissioner (Appeals). Hence, they have come before this Tribunal for relief. 3.Shri G. Shiva Dass, the learned Advocate, appeared for the appellants and Shri Anil Kumar, the learned JDR, for the Revenue. 4.The learned Advocate urged the following points :- (i)At the outset, the learned Advocate narrated the events leading to the passing of the impugned order and said that though the impugned order is a remand order, the Commissioner(Appeals) has already decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory and also intimated the reversal of Rs. 3,45,128/- made in the month of February 2005 on account of raw materials and finished goods lying as on 9-7-2004. On 10-3-2006, they informed the Assistant Commissioner of Central Excise, Bangalore that they would transfer the unutilized balance of Cenvat credit from Pondicherry. On 17-5-2006, they surrendered the Registration Certificate of Pondicherry unit consequent to closure of Pondicherry unit and shifting of manufacturing activity to Bangalore. On 15-3-2006, the Deputy Commissioner, Bangalore, directed the appellants not to transfer the balance of Cenvat credit. An appeal was filed before the Commissioner (Appeals). On 19-4-2006, they replied to the letter dated 15-3-2006 that the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer of inputs as such or in process materials 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 Limited 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts to such transferred, sold, merged, 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 or, as the case may be, the Assistant 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 factory on account of amalgamation. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit earned by a manufacturer under Cenvat Credit Rules, 2002 as they existed prior to the 10th day of September 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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