2006 (11) TMI 76 - AT - Central Excise

High Court approves transfer of unutilized Cenvat credit to Bangalore unit under Rule 10(1)

HEWLETT PACKARD (I) SALES (P) LTD. Versus COMMR. OF CUS., BANGALORE

The High Court approved the amalgamation of the Pondicherry unit with the Bangalore unit, allowing the transfer of unutilized Cenvat credit of Rs. ... Cenvat/Modvat – Alleged that appellant is not entitle to transfer the unutilized credit to other unit – After considering the detail authority allow the appeal with consequential relief Issues:1. Amalgamation of Pondicherry unit with Bangalore unit2. Transfer of unutilized Cenvat credit3. Requirement of permission for credit transfer4. Compliance with Rule 10(3) regarding transfer of inputsAnalysis:Amalgamation of Pondicherry unit with Bangalore unit:The High Court approved the amalgamation of the Pondicherry unit with the Bangalore unit. The Pondicherry unit ceased operations, surrendered its Registration Certificate, and had an unutilized Cenvat credit of Rs. 15,85,47,475. The appellants informed authorities of the amalgamation and their intent to transfer the credit to the Bangalore unit.Transfer of unutilized Cenvat credit:Rule 10 of Cenvat Credit Rules, 2004 allows the transfer of unutilized credit in case of factory shifting due to amalgamation. The appellants ceased production at Pondicherry post-amalgamation and intended to transfer the credit to Bangalore. They fulfilled the conditions for transfer under Rule 10(1), making them legally entitled to the transfer.Requirement of permission for credit transfer:The Commissioner (Appeals) erroneously held that permission was required for credit transfer. However, Rule 10 does not mandate prior permission for transfer, as established in the case of Solaris Bio-chemicals Ltd. v. CCE, Vadodara. Compliance with accounting requirements suffices for transfer.Compliance with Rule 10(3) regarding transfer of inputs:The appellants reversed the credit on inputs when duty on finished products became Nil. Rule 10(3) mandates transfer of inputs along with credit, but in this case, since the credit on inputs was reversed, the condition does not apply. The reversed credit does not form part of the transferable unutilized credit.Conclusion:The Tribunal found the appellants rightfully entitled to transfer the unutilized credit to the Bangalore unit. The impugned order was set aside, and the appeal was allowed with consequential relief. The decision was pronounced in open court at the conclusion of the hearing.