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TMI Blog2017 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Ms. R. Hemalatha For the Respondent : Mr. R. Parthasarathy for M/s.Lakshmi Kumar JUDGMENT ( Judgment of the Court was delivered by Rajiv Shakdher, J. ) 1.We have heard the learned counsels for the parties. After some time, learned counsels are agreed, that not only can the appeal be admitted and a question of law be framed, but also, this Court could proceed to decide the question of law as framed. 1.1.Accordingly, the following question of law, is framed, for consideration of this Court: Whether in the facts and circumstances of the case, the Tribunal was right in coming to the conclusion that the respondent/ Assessee was entitled to avail of, un-utilized cenvat credit in terms of Rule 10 of the Cenvat Credit Rules, 2004 ( in short, the 2004 Rules) 2.In order to adjudicate upon the present appeal, the following broad facts are required to be noticed: 2.1.The respondent/ Assessee is a manufacturer of workstation chairs, which fall under tariff sub heading no.94033010 of the Central Excise Tariff Act, 1985 (in short, CETA). 2.2.The respondent had accordingly, obtained a Registration Certificate, for its manufacturing un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion that the relief by way of refund sought by the respondent/ Assessee was not tenable and hence, rejected the same. However, the Adjudicating Authority, also considered the alternative plea of the respondent/ Assessee, which was to transfer the un-utilized cenvat credit to its Bangalore unit, in respect of which, reliance was placed by it, on Rule 10 of the 2004 Rules. Pertinently, the Adjudicating Authority rejected this contention of the respondent/ Assessee. 4.2.In this behalf, the Adjudicating Authority made certain observations, which, for the sake of convenience, are extracted hereafter: 13.As far as, the transfer to the unit at Bangalore is concerned, I am of the considered opinion that there is no provision for transfer of unutilised cenvat credit accumulated on account of EOU and SEZ clearances under Rule 10 of Cenvat Credit Rules, 2004. Rule 10 of Cenvat Credit Rules, 2004 is applicable in cases of merger, amalgamation take over etc. of the unit only which is not the case here. Here the existing unit at Hosur has been closed and R.C. Surrendered, thus there is no provisions in Cenvat Credit Rules to transfer unutilised cenvat credit in such cases to their ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has filed this instant appeal. 7.Ms.Hemalatha, who appears for the Appellant/Revenue, assails the order of the Tribunal, on the ground that it has misinterpreted the provisions of Rule 10 of the 2004 Rules. 7.1.According to the learned counsel, Rule 10 can only come into play, when, there is either a transfer on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of a factory, due to a joint venture, being put into operation. 7.2.Learned counsel submits that the transfer of cenvat credit under Rule 10 of the 2004 Rules, cannot be carried out, where the unit is completely shut down and the Registration Certificate is surrendered; a circumstance which occurred in this case. 8.In support of her submissions, learned counsel relied upon the observations made by the Commissioner of Appeals, in paragraph no.6 of his order dated 05.02.2014. 9.Mr.Parthasarathy, on the other hand, in support of his stand, largely, relies upon the observations made in the impugned judgment and order of the Tribunal. 9.1.Furthermore, in support of the conclusion reached by the Tribunal, Mr.Parthasarathy relies upon the first limb of Rule 10 of the 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease or transfer of the business to a joint venture with the specific provision for transfer of liabilities of such business, then, the provider of output service shall be allowed to transfer the CENVAT credit lying unutilized in his accounts 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. 12.2.A mere perusal of sub-Rule (1) would show that transfer of cenvat credit is available to a manufacturer in several situations: First, when the manufacturer of final products, shifts his factory to another site. Second, when, the factory is transferred on account of : change in ownership or on account of sale , merger , amalgamation , lease or transfer of factory to a joint venture, with spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, to enable an assessee to use un-utilised cenvat credit, we see no difficulty in holding that an assessee will be able to transfer his un-utilised cenvat credit, even in a situation, where he shifts his factory from one site to another. 13.At this juncture, Ms.Hemalatha says that transfer of cenvat credit under Rule 10 of the 2004 Rules, could only be made available to the respondent/assessee, if, the stock of inputs, as such, or in process, or capital goods were also transferred to the new site. 14.According to us, this was not an aspect, which was adverted to by the Adjudicating Authority, while, deliberating on the issue concerning transfer of un-utilized cenvat credit by the respondent/assessee to its Bangalore unit. 14.1.Furthermore, as indicated in our narration, the entire original record was made available to the Adjudicating Authority for examination. 14.2.We have been shown the copy of the reply filed which details out the annexures appended thereto. A perusal of the same leaves no manner of doubt that information qua this aspect was supplied, which is why, perhaps, no objection was raised by the Adjudicating Authority in this regard. 14.3.Accordingly, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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