2011 (4) TMI 344

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Per Mathew John:   The Appellant had a factory in Faridabad till May 2007. In May 2007 they shifted their factory from Ghaziabad to Roorkee-Haridwar (Uttrakhand). All excisable goods manufactured in factory are exempted from payment of Excise duty. 2. In the process of shifting their factory they had transferred capital goods on which Cenvat credit of Rs.8,49,708/- was taken. The Appellant .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... mation to the department and, therefore, intention to evade payment of duty cannot be alleged.   4. Aggrieved by the order-in-appeal, the Appellant has filed this Appeal. The Counsel for the Appellant argues that his case falls squarely within Rule 10(3) of Cenvat Credit Rules. Since the Appellant is not selling the goods and the removal is from his factory at Faridabad to factory at Roorkee .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... d in the new factory were fully exempted from Excise duty and, therefore, there was no question of transferring any credit on inputs or capital goods to the new factory. Rule 10(3) is a condition to be satisfied for transferring credit under Rule 10(1). Since credit could have been transferred under Rule 10(1) and since there was no such transfer there was no question of allowing transfer of capit .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ld, merged, leased or amalgamated factory.   (2) If a provider of output service shifts or transfers his business on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the business to a joint venture with the specific provision for transfer of liabilities of such business, then, the provider of output service shall be allowed to transfer the CENV .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... tory at Roorkee was not operating under Cenvat Scheme. That being the case provisions of Rule 10(3) cannot be applied in this case. This Rule cannot be read as a provision enabling removal of capital goods from one factory of a manufacturer to another factory of the manufacturer. Therefore the correct rule applicable was Rule 3(5) as argued by the ld. DR.   9. I note that none of the case la .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X