TMI Blog2022 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... nied on the ground that appellants have shifted on inputs and not shifted the capital goods - HELD THAT:- In the case of Ispat Industries (supra) it was held that it is not necessary that the inputs and capital goods have to be transferred. Rule 10(3) uses the expression inputs or capital goods . The appellant in the present case has transferred the inputs into the Puducherry unit. Thus, as per Rule 10(3), they are entitled for transfer of the unutilized credit. The disallowance of transfer of unutilized credit cannot be justified - Appeal allowed - decided in favor of appellant. - Excise Appeal No.41255 of 2014 - Final Order No. 40043/2022 - Dated:- 3-2-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri P. Anjani Kumar, Member (Technical) Shri P.S. Pruthi, Consultant for the Appellant Ms. Sridevi Tritula, ADC (AR) for the Respondent ORDER Brief facts are that the appellants are holding Central Excise registration for manufacture and clearance of multiplexers and parts thereof. They were availing the facility of CENVAT credit of duty paid on inputs, capital goods and service tax paid on input services. They had two other units located in Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units at Bangalore and the manufacturing was confined to Puducherry unit. While so closing down the Bangalore units, the stock of inputs were transferred to Puducherry unit on payment of duty. They requested the Assistant Commissioner, Koramangala, Bangalore vide letter dated 12.8.2009 for permission to transfer the CENVAT Credit to its Puducherry unit. They were directed to file application before the Assistant Commissioner of Puducherry unit. Though they filed such application, the request was not allowed. Thereupon, the appellant availed the suo moto credit of the inputs which was lying unutilized in RG-23A register of their Bangalore unit. 5. He submitted that the department has issued the Show Cause Notice alleging that when the factory is closed down at Bangalore and appellant confined the manufacturing activity to Puducherry unit, there is no merger or transfer of units and therefore Rule 10(1) will not apply. It is also alleged that the appellant did not transfer any capital goods as required under Rule 10(3) and therefore the appellant is not entitled to get the CENVAT credit transferred. 6. The learned consultant adverted to Rule 10 of CENVAT Credit Rules, 2004 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the appellant s own case earlier in regard to transfer of unutilized CENVAT credit from J.P. Nagar unit, Bangalore to Hulimavu unit at Bangalore, the adjudicating authority denied the permission for transfer of unutilized credit and ordered for recovery of the same. On appeal before the Commissioner (Appeals), the said order passed by the adjudicating authority was set aside and the appellant was permitted to transfer the credit vide Order in Appeal No. 114/2016-LTU dated 2.11.2016. 9. The learned counsel also relied on the decision of the Tribunal in the case of Ispat Industries Ltd. Vs. CCE, Raigad 2014 (300) ELT 108 (Tri. Mum.) to argue that even if capital goods are not transferred along with inputs, the assessee is eligible to transfer the entire CENVAT credit. He prayed that the appeal may be allowed. 10. The learned AR Ms. Sridevi Tritula appeared for the department. She supported the findings in the impugned order. 11. Heard both sides. 12. Rule 10 of CEVAT Credit Rules, 2004 provides for transfer of unutilized CENVAT credit in the case of sale, merger, amalgamation, transfer of unit etc. In the present case, the appellant had closed the factory at Bangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his factory from one site to another. 13. At this juncture, Ms. Hemalatha says that transfer of Cenvat credit under Rule 10 of the 2004 Rules, could only be made available to the respondent/assessee, if, the stock of inputs, as such, or in process, or capital goods were also transferred to the new site. 14. According to us, this was not an aspect, which was adverted to by the Adjudicating Authority, while, deliberating on the issue concerning transfer of unutilized Cenvat credit by the respondent/assessee to its Bangalore unit. 14.1 Furthermore, as indicated in our narration, the entire original record was made available to the Adjudicating Authority for examination. 14.2 We have been shown the copy of the reply filed which details out the annexures appended thereto. A perusal of the same leaves no manner of doubt that information qua this aspect was supplied, which is why, perhaps, no objection was raised by the Adjudicating Authority in this regard. 14.3 Accordingly, for the reasons given above, the conclusions arrived at, by the Tribunal is sustained, albeit, for different reasons. Consequently, the question of law, as framed, is answered in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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