2012 (12) TMI 707 - AT - Central Excise

Transfer of Unutilized Cenvat Credit Upheld on Factory Closure

Fabrico India (P) Ltd. Versus Commissioner of Central Excise

Fabrico India (P) Ltd. Versus Commissioner of Central Excise - 2012 (284) E.L.T. 69 (Tri. - Del.) Issues:1. Interpretation of Rule 10(1) and (3) of Cenvat Credit Rules, 2004 for transfer of unutilized cenvat credit from one manufacturing unit to another.Analysis:The case involved M/s Fabrico (India) Pvt Ltd., engaged in manufacturing base plate, steel tabular poles. The appellant had two manufacturing units, one at Meerut and the other at Dabwali Road, Sirsa. In 2005, the appellant decided to close the Sirsa unit and merge it with the Meerut unit. The appellant sought to transfer unutilized cenvat credit of Rs.41,20,514 from the Sirsa unit to the Meerut unit as per Rule 10(1) of Cenvat Credit Rules, 2004. The Department disputed this transfer, leading to a show cause notice demanding the amount and imposing a penalty. The Additional Commissioner disallowed the transfer, which was upheld by the Commissioner (Appeals).The key contention was whether the transfer of unutilized cenvat credit from the closed Sirsa unit to the existing Meerut unit was permissible under Rule 10(1) and (3) of Cenvat Credit Rules, 2004. The Commissioner (Appeals) held that since the factory was not shifted to a new site and only capital goods were transferred, the transfer was not allowed. The appellant argued that the closure of the Sirsa unit and the shifting of capital goods to Meerut constituted shifting the factory to another site, as envisaged under Rule 10(1). The Tribunal analyzed the provisions of Rule 10(1) and (3) and noted that the Commissioner (Appeals) misinterpreted the term 'another site,' which referred to a site other than the factory being shifted. The Tribunal also found that the condition of Rule 10(3) regarding the transfer of inputs or capital goods was met, as the appellant had shifted capital goods to Meerut. There was no evidence to suggest that the factory was not genuinely shifted, leading the Tribunal to conclude that the denial of the transfer was unjustified.Ultimately, the Tribunal allowed the appeal, setting aside the order disallowing the transfer of cenvat credit and confirming the duty demand with interest and penalty. The Tribunal held that the appellant was entitled to transfer the unutilized cenvat credit to the Meerut unit, considering the closure of the Sirsa unit and the transfer of capital goods, in compliance with Rule 10(1) and (3) of Cenvat Credit Rules, 2004.