2018 (3) TMI 1129

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..... in favor of appellant.
Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri.B.L. Narasimhan, Advocate present for the Appellant Shri. A.K.Saini, DR present for the Respondent ORDER Per : Ashok Jindal The appellant is in appeal against impugned order wherein Cenvat Credit to the tune of ₹ 87.4 crores has been denied to various inputs and capital goods used for setting up of towers and pre-fabricated buildings. 2. The brief facts of the case are that the appellant is engaged in providing cellular telecommunication services and during the period relevant for the purpose of present appeal, they were discharging their Service tax liability on telecommunication services, business support services .....

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..... only the situation where physical removal has occurred, he dropped the proceedings under the said Rule. However, he invoked the provisions of Rule 10 of Cenvat Credit Rules, which allows the assessee to seek transfer of Cenvat Credit to the transferor unit. He observed that inasmuch as the appellant have not transferred the unutilized credit on transfer of infrastructure to M/s.BIL, the said credit has lapsed and is liable to be recovered. He also did not find favour in the appellants contention that demand stand raised by way of show cause notice on 20/04/2010 in respect of period ending on 31/01/2008 and is hopelessly barred by limitation. However, while confirming the demand he did not impose any penalty on the appellant on the ground t .....

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..... nsferee, in the case of sale, merger, amalgamation, lease or transfer of business to a joint venture. In this case the ownership of tower, pre-fabricated buildings/tents transferred to M/s.BIL. In terms of Rule 10, the appellant was within its rights to seek benefit on this count. Transfer of said credit is not mandatory. It is a optional from the language of the Rule itself, the question as to whether the transferor does not seek transfer of the accumulated credit, whether the same would like in the account books of transferor or in that case, the credit is required to be disallowed. The Rule nowhere suggest that the owner or the transferor of the business is legally bound to transfer the credit which cannot remain in existence. A similar .....

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