TMI Blog2018 (7) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the Hindupur. Rule 10 is a special provision within the same CCR 2004 specifically given for such situations. Hence by the maxim of Generalia Specialibus Non Derogent, the provisions of Rule 10 will take precedence and override the general provisions in respect of removal of capital goods found in Rule 3 (5) ibid - the provisions of Rule 10 alone will have direct bearing in respect of these removals. The conditionalities of Rule 10 given in sub-rule (3) have also been complied with. Hence appellants have not fallen foul of Rule 10 of the CCR and are very much eligible to transfer the credit amount along with capital goods so transferred. The Hon’ble High Court of Karnataka in the case of CCE Bangalore-II Vs Solectron Centum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.02.2009 set aside the penalty imposed by the original authority, however upheld the remaining part of the order. In further appeal, CESTAT Chennai vide a Final Order No.935/2009 allowed the appeal by way of remand to the lower appellate authority for de novo proceedings which was complied with vide the impugned order No.60/2010 dt. 09.04.2010 wherein the lower appellate authority except for waiver of penalty rejected the appeal filed by the appellants. Hence the appellants are once more before this Tribunal. 2. Today when the matter came up for hearing, on behalf of the appellant, Ld. Counsel Shri Raghavan Ramabhadran made various submissions which can be broadly summarised as under : i) The Cenvat credit availed on the capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Hindpur Factory were already used by the Appellant in their factory. Therefore, the provisions of Rule 3 (5) requiring reversal of full Cenvat credit availed on capital goods transferred is not attracted. 3. On the other hand, Ld.A.R Shri S. Govindarajan supports the impugned order. He also submits that for removals of this type provisions of Rule 3 (5) of the CCR alone would be applicable, hence appellants are very much required to pay back the total quantum of credit availed in respect of the capital goods. 4. Heard both sides and have gone through the facts. 5. In para 2 (i) of the show cause notice dt. 05.03.2008, it is narrated that appellants, vide their letter dt. 21.04.2007, addressed to the jurisdictional Range Superin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as laid down special provisions for transfer of cenvat credit in case, inter alia of shifting of rectory of a manufacturer to another site, or on account of change of ownership, sale etc. The relevant provisions of Rule 10 are reproduced as under : RULE 10. Transfer of CENVAT credit. -(1) If a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to a joint venture with the specific provision for transfer of liabilities of such factory, then, the manufacturer shall be allowed to transfer the CENVAT credit lying unutilized in his accounts to such transferred, sold, merged, leased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o been complied with. Hence appellants have not fallen foul of Rule 10 of the CCR and are very much eligible to transfer the credit amount along with capital goods so transferred. 6.5 In arriving at this decision, we find sustenance in a number of decisions of higher appellate forums. The Hon ble High Court of Karnataka in the case of CCE Bangalore-II Vs Solectron Centum Electronics Ltd. - 2014 (309) ELT 479 (Kar.) has held that prior to 13.11.2007 there was no duty payable in respect of capital goods which was used before it is removed. The relevant portion of the judgement is reproduced as under : 14 . Therefore, it is clear, till the law was amended as on 13-11-2007 in respect of used capital goods, there was no liability to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant case in terms of Rules 9 49. It was also contended for the appellants that sub-rule (20) and sub-rule (21) are a self contained code covering both transfer of credits and transfer of inputs and since it was self contained, the question of application of Rule 57F(2) does not arise is applied to the facts of the present case then sub-rule (20) and sub-rule (21) become redundant. We find that there is force in the arguments of the ld. Counsel for the appellants. sub-rule (20) and sub-rule (21) covers transfer of the credit lying in the books of the seller and sub-rule (21) covers the transfer of inputs lying in a stock with the seller on the date of sale. Similarly capital goods are covered by sub-rule 57S(5) and credit on capi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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