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TMI Blog1997 (10) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Collector for transfer of the Modvat credit remaining unutilised in the former units. While they were permitted to do so, the request for transfer of unutilised credit in the RG 23A/Pt. II account was not, however, allowed by the Assistant Collector. His order was confirmed in appeal by the Collector (Appeals) leading to the present appeal. 2. Shri Gopal Prasad, learned Counsel for the appellant submitted that their shifting operation from one unit to the other was squarely covered by the provisions of Rule 57F(6) as stood at the material time. The Assistant Collector, however, held that it was not a case of shifting of factory but that it was a case of merger and amalgamation. The contention of, the learned Counsel is that the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the permission was being granted as per the provisions of Rule 57(F)(i)(ii). 5. The Assistant Collector's order conveys the basis for his decision in the following words :- "Here it is true that both the plants belong to the same manufacturer being same partners but Rule 57F(6) allows transfer of unutilised credit balance on account of shifting of the plant or factory to another site/Here the case is not of shifting to another site but the case is of Merger/amalgamation. Here the Unit - I have lost their identity whereas for availing benefit of Rule 57F(6) the plant/unit should not lose their identity." This finding has apparently been given by the Assistant Collector following the direction or advice given by the Additional Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is specified above, would lapse and would not be admissible for transfer." 6. It is clear that both the authorities below had come to the wrong conclusion by misreading the Borad's instructions regarding transfer of unutilised credit on merger/amalgamation. As correctly pointed out by the learned Counsel this is not a case of merger or amalgamation of one company with another company. Here the manufacturer or the firm was only one. No doubt they had two units at two different locations. If due to operational or any other commercial reasons, they decided to wind up one unit and shift all the plant and equipment and the material from that location to their other unit, it did not amount to a merger or amalgamation of the type referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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