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TMI Blog2024 (3) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... partment should have allowed the transfer of Modvat / Cenvat credit lying in RG23A and RG23C accounts of M/s. Britco Foods Company Limited to M/s. Hindustan Coca Cola Beverages Limited on receipt of letter of merger of two companies it is opined that 20.10.1999 is the date when department was informed of the formal merger of two entities and therefore the relevant date of transfer of Cenvat credit should be 20.10.1999. Thus, relevant date for allowing interest on delayed transfer of Cenvat credit as ordered by Hon ble Gujarat High Court in the above mentioned order dated 04.04.2013, will be 20.10.1999 - appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR, MEMBER ( TECHNICAL ) Shri Hardik Modh , Advocate for the Appellant Shri Rajesh R. Kurup , Superintendent ( AR ) for the Respondent ORDER C. L. MAHAR : The brief facts of the matter in this appeal are that M/s. Britco Foods Company Limited (M/s. Britco for short) merged with the appellant under Companies Act, 1956. The scheme of merger was approved by Hon ble Delhi High Court on 10.09.1999. Before the order of merger, M/s. Britco has made an application da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time, a show cause notice dated 31.01.2005 was served to the applicant asking them to show cause as to why interest of Rs. 2,20,56,050/- claimed by them should not be rejected. The matter was adjudicated by learned Commissioner vide order-in-original 05/Commissioner/2005 dated 11.04.2005 whereunder the claim of interest was rejected on the argument that there is no provision of interest under Central Excise Act and Rules. 3. The appellant feeling aggrieved of the above referred order-in-original again preferred Civil Application No. 15012/2005 in the Hon ble Gujarat High Court and the Hon ble High Court vide its order dated 01.04.2013 set-aside the order-in-original No. 05/Commissioner/2005 dated 11.04.2005 and ordered to pay interest. After the Hon ble Gujarat High Court order dated 01.04.2013, the appellant have again approached the department for sanction of interest amounting to Rs. 3,15,99,509/- on the delayed approval of transfer of Cenvat credit. The original adjudicating authority vide order-in-original 01/CEX/DC/GAR/Ahmedabad-2013-14 dated 19.06.2013 sanctioned interest amounting to Rs. 1,94,30,455/-. The learned Adjudicating Authority in his order at Para 7 has menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court. The petitioners cannot be expected to refer in their petition to the material which would be required in anticipation of the Supreme Court decision I find that the rationale is applicable to the instant case. Therefore I find that the interest cannot be admissible from 20.02.1998. 5.5 I further find that the appellant applied again for transfer of unutilized Modvat/ Cenvat credit on 20.10.1999 i.e. after the approval of scheme of merger of M/s Britco to the appellant company accorded by the Hon'ble High Court of Delhi. I have gone through the text of the letter and I find that the appellant had not supplied the certified copy of the order issued by the High Court of Delhi. The appellant contended that the department never requested for the certified copy of the order passed by the Hon'ble High Court of Delhi approving the scheme of merger. I find that it is the obligatory part of the appellant to provide all the relevant documents while applying for the transfer of the unutilized credit. In the instant case the order passed by the Hon'ble High Court of Delhi is the only relevant document which was required to be submitted by the appellant along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiably and therefore the claim was denied on equitable consideration as well. The position is quite different in the case on hand, as in this case an amount to which the petitioner was rightfully entitled vas illegally and unlawfully withheld and such retention is found to be unsustainable in law. Thus, the said decision relied upon by the learned counsel for the respondents is found not applicable considering the factual matrix of the present case. 8. Under the circumstances, this Court is of the opinion that the order of the Commissioner disentitling the petitioner of any interest on the amount is required to be set aside. The same is accordingly set aside. 9. Learned Advocate for the respondents submitted that the rate of interest is regulated by the different notifications issued by the department from time to time. Accordingly, it is directed that the department will calculate and pay the interest payable for the delayed payment at the rate of 9% per annum within a period of one month from the date of receipt of this judgment and order. 9.1 The department shall also pay 6% simple interest per annum on the interest so quantified as per directions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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