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2014 (3) TMI 87 - AT - Central ExciseDenial of CENVAT Credit - Transfer of unutilized cenvat credit alongwith transfer of liability - Change of ownership - appellant filed an application for transfer of credit lying in their CENVAT credit account attributable to inputs and capital goods, unutilized by them, to Exide Industries Ltd. - Request was denied - Non-compliance of provisions of Rule 57S(5) - Held that:- From the plain reading of the Rule 57S(5), the condition of the transfer liability is applicable to change in site of the factory resulting from sale, merger, amalgamation or transfer to a joint venture. Admittedly, in this case, the factory has not been shifted to anywhere but only the ownership has been changed. Therefore, the clause of transfer liability is not applicable to the facts of this case. With regards to the denial of credit for non-compliance of provisions of Rule 57S(5), the appellant has produced a letter on record for requesting of transfer of the ownership of the factory along with the details of inputs and capital goods lying unutilized in their account is on transfer of the factory to Exide on 04.05.1998. The said document has not been appreciated by the lower authorities at all. When there is evidence on record, therefore the observation by the authorities that they have not produced any documents, is not sustainable - amount is required to be paid by the appellant and in this regard the appellant has written to the concerned authorities for adjustment of the said amount from the CENVAT credit lying unutilized. Therefore, I hold that the CENVAT credit lying unutilized is required to be allowed to transfer of inputs and capital goods to 'Exide' after deducting the outstanding amount payable by the appellant - The amount payable by the appellant is to be adjusted first before allowing the said unutilized CENVAT credit on account of inputs and capital goods - Decided in favour of assessee by way of remand.
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