TMI Blog2012 (12) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, they did not find any "Inputs' as such or under process in the stock. If there was no inputs in the stock, there was no occasion for transferring the inputs to the new factory. Admittedly, the appellant has transferred the capital goods to another site at Meerut. Therefore,the condition of Rule 10(3) of Cenvat Credit Rules for transfer of cenvat credit is fulfilled. No basis for conclusion that the appellant has only shifted the capital goods but not the entire factory as there is no evidence on record to show that the appellant has shifted the factory only on paper and the production is still going on at Dabwali Road, Sirsa - no denial of transfer of cenvat credit warranted - in favour of assessee. - Central Excise Appeal No. 38 of 2011 - Final Order No. A/747/2012-EX(BR) - Dated:- 27-6-2012 - Ajit Bharihoke and Rakesh Kumar, JJ. Madhur Dhingra, Adv. for the Appellant I. Baig, AR for the Respondent Ajit Bharihoke, President 1. M/s Fabrico (India) Pvt Ltd., the appellant herein is engaged in the manufacture of base plate, steel tabular poles classifiable under heading 7308 of the Central Excise Tariff Act, 1985. 2. The appellant established his firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty was also proposed in the notice. The appellant contested the show cause notice claiming that he has rightly transferred the unutilized cenvat credit to his account at Meerut in terms of Rule 10(1) of Cenvat Credit Rules, 2004. Additional Commissioner, Central Excise, after hearing the parties vide his order dated 7.5.2010 disallowed the transfer of cenvat credit to the first unit and confirmed the duty demand of Rs.41,20,514/- with interest and also imposed penalty of equal amount. 6. The appeal preferred against the aforesaid order in original did not find favour with the Commissioner (Appeals), who vide impugned order in appeal No.205/CE/MRT I/2010-11 dated 31.8.2010 dismissed the appeal on the ground that the requirement of Rule 10(1) of Cenvat Credit Rules, 2004 are not satisfied in this case. 7. It is against aforesaid order in appeal dated 31.08.2010 the appellant has preferred appeal before the Tribunal. 8. Shri Madhur Dhingra, ld. Advocate for the appellant pleaded that impugned order is not sustainable as it is based on incorrect appreciation of facts and law. Expanding on the argument ld. Advocate submitted that admittedly the appellant was running two manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner of Central Excise. 12. Before adverting to the impugned order of Commissioner (Appeals) it would be useful to note some undisputed facts. It is not in dispute that the appellant was running two manufacturing units - one at Meerut and other at Dabwali Road, Sirsa. It is also not disputed that in May, 2005 the appellant closed his manufacturing unit at Sirsa and shifted the capital goods lying in the factory at his already existing manufacturing unit at Meerut under intimation to the concerned jurisdictional Assistant Commissioner. It is also not disputed that the official of the Commissionerate, Hisar visited the factory of the appellant at Dabwali Road, Hisar and found that there were no "Inputs" in stock/in process and that the Assistant Commissioner in response to the communication sent by the Commissionerate Meerut intimated them vide letter dated 26.10.2005 addressed to Assistant Commissioner, Central Excise, Meerut (UP) that duty paying documents involving central excise duty of Rs.41,20,514/- have been got verified and the same were fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner of Central Excise. Thus, it is necessary in to order to avail the benefit of transfer of the cenvat credit that the inputs as well as capital goods should be transferred to the new site along with the factory. In the instant case, the factory was neither transferred to another site nor to the new site. Instead, only capital goods were consigned/transferred to the already existing factory. The closure of work at Sirsa unit and owning the liabilities of Sirsa unit by Meerut unit could not be termed as shifting of the factory to another site. Hence, the transfer of cenvat credit cannot be granted to the appellants. Thus, they have availed the benefit of cenvat credit wrongly diespsite knowing the fact that they were not entitled to such credit. 14. On reading of the above, we find that Commissioner (Appeals) has disallowed the transfer of unutilized cenvat credit to the appellant on the ground that the transfer is not permissible in view of Rule 10(1) read with Rule 10(3) of Cenvat Credit Rules, 2004 because the appellant had not shifted his factory from Sirsa to a new site to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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