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2014 (10) TMI 52 - AT - Central ExciseCENVAT Credit - Transfer of company - Associate enterprise amalgamated with assessee - Department intimated about such transfer - Held that:- As on January, 2011 when the merger took place, whatever credit was available in the books of BASFI was transferred to the appellant. I find from the. records that the department was intimated about the merger and availment of credit in the books of BASFI by the appellant in October, 2011 and this has not been objected to. Moreover I also find that Rule 10 of Cenvat Credit Rules, 2004 provided that where the entire assets are taken over by another company and transferred, the credit available in the books of account also get transferred. Therefore the entire exercise undertaken by the Revenue became infructuous because both the companies merged and by the time proceedings were initiated technically from the date of order of the High Court, the merger also has taken place and therefore whatever credit was available in the books of account of BASFI has to be transferred to the appellant in January, 2011 itself. Even though in reality the actual transfer of the credit was made only in October, 2011 - services were utilized in both the units and therefore proportionate credit should have been availed. It was also submitted by the learned counsel that BASFI was also paying excise duty and they were making payment from both PLA and Cenvat credit account. In such a situation it cannot be said that there was an intention to avail wrong credit since BASFI would have also utilized the credit. Since before passing the Order-in-Original the credit had already become part of the credit of appellant and the BASFI ceased to exist - Decided in favour of assessee.
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