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TMI Blog2017 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... nd appeal lies with CESTAT. We find these grounds to be correct and genuine and hence the delay is condonable. MA (COD) is allowed. With the consent of both sides, the appeals are also taken up for hearing and disposal. 3. The other MA No.E/Stay/30444/2016 is filed by Revenue seeking for staying operation of the impugned OIA dt. 29.10.2014. Since both the appeals are taken up for hearing and disposal, the MA gets disposed. 4. The brief facts of the case are that M/s. Blue Whale Industries (hereinafter referred to as assessee) are manufacturers of goods viz. Indian Mouth Freshener falling under CTH 21069020 and exporting the same. Assessee filed a refund claim of Rs. 2,57,77,440/- in terms of Rule 5 of Cenvat Credit Rules, 2004 being the accumulated cenvat credit attributable to the inputs used in the manufacture of finished goods exported during the quarter ending 2007. In response, department issued a SCN dt. 18.06.2014, proposing denial of refund of credit amount pertaining to unit of the appellant at Vasai, Maharashtra involving credit amount of Rs. 1,44,10,817/- which amount was taken as credit by assessee on transfer of the unit from Vasai to Guntur. In adjudication proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. A.R further submits that, for the same reasons, the OIO dt.28.03.2016 which has confirmed the demand of Rs. 1,44,10,817/- & Rs. 34,572/- related to assessee Appeal No.E/30391/2016 is very much in order and does not call for any interference. 7. On the other hand, on behalf of assessee, Ld. Advocate Shri Paresh M Dave submits as follows : (a) The allegation that assessee had not informed the jurisdictional Central Excise authorities at Vasai or at Guntur about shifting of their factory and transfer of cenvat credit is totally incorrect. (b) In fact, assessee had submitted a letter dt.17.09.2012 to the DC Vasai Division informing them about the decision to shift the factory and also about a new Central Excise registration certificate issued for the appellant's Guntur factory where the factory was to be shifted. It was also submitted in this letter that there was no stock of raw materials in the Vasai-Thane factory, and that no Cenvat credit was availed on any of the capital goods, and Rule 10 of the Cenvat Credit Rules was also referred to while submitting that finished goods would be shifted under invoices on payment of excise duty. (c) On 03.12.2012, the appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Vasai about any liability that assessee had to discharge at the time of, or after shifting of the factory. (m) On the other hand, a letter dt. 20.12.2013 was sent by DC Thane to DC Guntur confirming that ER-1 returns submitted for October 2012 was submitted and that credit balance of Rs. 1,44,10,917/- was lying in the assessee's cenvat credit account. (n) Transfer invoices, transport documents and ER-1 returns of both the factories confirming transfer and receipt of all the goods have been submitted by the long chain of correspondence that assessee had entered into with both the jurisdictional Central Excise authorities. (o) They rely on the ratio of Tribunal decision in Flex Art Foil Pvt. Ltd. Vs CCE Daman- 2010 (260) ELT 261 (Tri.-Ahmd.) which has held that no formal permission is required from CE officers under Rule 10 for transfer of unutilized credit. The same ratio has been reiterated in the Hewlett Packard (I) Sales (P) Ltd. Vs CC Bangalore - 2007 (211) ELT (Tri.-Bang.). In the case of Modi Tyres Co. P.Ltd. Vs CCE Meerut - 2012 (286) ELT 629 (Tri.-Del.), the Tribunal has held that in the matter of transfer of unutilized cenvat credit, the entire correspondence exchanged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise." 8.3 Discernably, transfer of cenvat credit lying unutilized in the factory to be shifted is allowed by Rule 10. The sole conditionality in such case, as per Rule 10 (3), is that stock of inputs as such or in process or the capital goods is also transferred along with factory to the new site and the inputs / capital goods on which credit has been availed of are duly accounted for to the satisfaction of the jurisdictional AC/DC of Central Excise. Only in a situation where there is a change of ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to joint venture is there an additional requirement of specific provision for transfer of liabilities of such factory. 8.4 Rule 10 (3) of the Rules requires the quantum of stock / credit to be accounted for to the satisfaction of the jurisdictional Asst./Deputy Commissioner. From the documents and information submitted by the assessee, it is evident that they had initiated correspondence with the erstwhile jurisdictional Deputy Commissioner of Vasai Division on 17.09.2012 itself followed by letters dt.3.12.2012, 23.10.2013 and 18.11.2013 submitting intimations with regard to shifting etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary action. However, the Superintendent of Central Excise, Range III, Vasai Division, Maharashtra, vide their letter in F.No.C.EX./R-03/Vasai/Blue Whale/13/1059 dt.29.10.2013, informed the JRO that "the clarification may be sent through the Assistant Commissioner of Guntur Division to the Deputy Commissioner of Vasai Division". Accordingly, a letter vide C.No.V/5/08/2012-Tech. dt.06.12.2013, was sent to the Deputy Commissioner, Vasai Division by the JAC, Guntur Division calling for a report on the issue. The Deputy Commissioner of Customs, Central Excise and Service Tax, Vasai Division, Thane-II, vide his letter in F.No.CEX/Vasai/R-03/Blue Whale/2013/1171 dt.20.12.2013, stated that the ER-1 return submitted by the assessee for the month of October, 2012 shows clearance of - i) 33826 Nos. of Indian Mouth Freshner (FM) valued at Rs. 2,72,29,930/- and ii) 1873 Nos. of parts of Electro Mechanical Devices valued at Rs. 42,14,250/- to their Guntur Unit. Also, total credit balance of Rs. 1,44,10,817/- was lying as balance in their CENVAT Credit Account. 5. With regard to details to stock at the time of shifting of the said unit, the Deputy Commissioner stated that M/s. Blue Whale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and inter alia clarified the details of Mouth Freshener and parts of Electro Mechanical devices transferred from Vasai to their Guntur unit; a further confirmation had also been given that a total credit balance of Rs. 1,44,10,817/- was lying in balance in cenvat credit account. 8.10 With regard to discrepancy found by the DC Vasai concerning stock statement / stock transfer, it is noted that this was submitted to the AC Guntur vide letter dt. 19.12.2013. Self-certified copies of Cenvat registers of August 2012 for Vasai unit and for October and November 2013 for Guntur unit were submitted to the AC Guntur vide letter of assesseedt.19.12.2013. 9.1 From the above discussions, we find that the jurisdictional CE authority of the assessee's erstwhile factory at Vasai had certified that total credit balance of Rs. 1,44,10,817/- was lying in their cenvat credit account even after shifting of the factory. Assessee had kept informed the Guntur CE authorities of developments right from 30.07.2013, including the information that they had taken credit entry of Rs. 1,44,10,817/- in cenvat credit account and Rs. 34,572/- in PLA account. There was no objection or dispute raised by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation at Guntur. Series of letters and the intimations had been sent by assessee about their shifting and intentions to both Vasai and Guntur CE authorities. ER-1 returns in November 2013 were filed by the assessee on 10.12.2013 in Guntur. 10. Viewed in this light, we do not find any infirmity in the findings and conclusions of the Commissioner (Appeals) in OIA No.64/2014 dt.29.10.2014 (impugned order in respect of Appeal No.E/30394/2016). In consequence, we have no hesitation in holding that the assessee has substantially complied with the procedural requirements of Rule 10 of CCR 2004 and substantive benefit extended vide that rule, namely, facilitating transfer of cenvat credit/PLA from their erstwhile Vasai factory to their new Guntur factory, cannot be then denied. In consequence, Appeal No.E/30394/2016 filed by department will not hold merit and the same is dismissed. 11. For the same reasons, we find merit in Appeal No.E/30391/2016 of the assessee for which reason, we set aside related impugned Order-In-Original No.GUN-EXCUS-000-COM-020-15-16-CE dt. 28.03.2016. The Appeal No.E/30391/2016 filed by the assessee is therefore allowed with consequential relief, if any, as per l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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