TMI Blog2015 (12) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no involvement of any transfer. Further, the Hon’ble High Court of Madras in the case of CCE, Pondicherry Vs. Cestat (2008 (7) TMI 383 - MADRAS HIGH COURT ) has upheld this Tribunal’s order and rejected the Revenue’s appeal. - appellants are eligible for Cenvat credit. I do not find any infirmity in the impugned order. - Decided against Revenue. - E/254/2012 & E/CO/5054/2012 - FINAL ORDER No. 41445 / 2015 - Dated:- 5-10-2015 - Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri B. Balamurugan, AC (AR) For the Respondent Shri. M. Karthikeyan, Adv., ORDER Revenue filed this appeal against the Order of the Commissioner (Appeals) dated 12.01.2012. 2. The brief facts of the case are that M/s. Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (ii) in process and (iii) contained in the final products lying in stock is only liable to be transferred and any credit in excess of this amount would lapse; (iii) that ₹ 44,62,413/- availed as credit in excess of the credit attributable to the inputs which were lying in stock and/or (ii) in process and (iii) contained in the final products lying in the stock, is recoverable with interest from the assessee under Rule 14 of the CCR r/w Section 11A and 11AB of CEA, 1944; (iv) that the Respondent have availed such credit in contravention of Rule 10 of the CCR, 2004 and hence, liable for penalty under Rule 15 of CCR, 2004. On appeal, vide OIA dated 12.01.2012, the Commissioner (Appeals) allowed the transfer of unutilized credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This circular was brought out in the OIO and the Commissioner (Appeals) has conveniently has not taken note of this at all. He further submits that the Order passed by the Commissioner (Appeals) is not legal and proper and hence liable to be set aside and the Order of the adjudicating authority to be restored. 4. The Ld. Counsel on behalf of the respondents Shri M.Karthikeyan, submits that there was no stipulation under Rule 10(3) of CCR, 2004, that the transfer of credit would be restricted to the credit attributable to the physical stock of inputs lying as such or in process with the transferee factory which is transferred to the transferee factory. The only restriction is that whatever stock of inputs is lying with the transferee fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d between the unutilized input credit transferred at the time of amalgamation and the proportionate credit involved on inputs and work in progress inputs that are actually transferred. The Department had relied on Rule 10 of Cenvat Credit Rules, 2004 and Board s instructions in Circular No. 1/93-CX.8 dated 05.01.93. I find that the appellant had intimated the Department about the amalgamation of the companies as per Hon ble Madras High Court s order and had asked permission to the Jurisdictional Divisional office to transfer credit lying in the accounts of SPL Polymers Ltd as per Rule 10 of the Cenvat Credit Rules, 2004. The Divisional Assistant Commissioner after verification by the Range officer had allowed the Cenvat Credit on Capital Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligations and guarantees of the M/s SPL Polymers Ltd, they are eligible for transfer of unutilized credit lying the in the accounts of M/s SPL Polymers Ltd. It is pertinent to mention that Hon ble CESTAT, Bangalore in the case or M/s Tata Auto Comp Systems Ltd Vs CCE, Bangalore (2008 TIOL 2321- CESTAT-BANG) had held that the assessee is eligible to avail unutilized cenvat balance lying in the books in the factory transferred to another ownership without physical transfer to any inputs or capital goods. On perusal of the Hon ble High Court s order in C.P. No. 91/2008 dated 16.06.2008, and other relevant documents, I find that it is not the case of transfer of capital goods and inputs from one company to another. But, it is an amalgamati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be made out by the Assessing Authority. The Commissioner as well as the Tribunal are justified in setting aside the order and restoring the benefit to the assessee. The ratio of the above order squarely applies to the present case and in the present case there is no involvement of any transfer. Further, the Hon ble High Court of Madras in the case of CCE, Pondicherry Vs. Cestat (supra) has upheld this Tribunal s order and rejected the Revenue s appeal. 7. By respectfully following the above, I hold that the appellants are eligible for Cenvat credit. I do not find any infirmity in the impugned order. I uphold the order of the Commissioner (Appeals). The Revenue appeal is rejected. The cross objection filed by the respondent is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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