2017 (1) TMI 357 - AT - Central Excise

Tribunal allows appeal on post-merger credit denial, citing no time limit for availing Cenvat credit.

The Tribunal allowed the appeal by M/s. Jayaswal Neco Industries Ltd., holding that the denial of credit for invoices issued in the name of the other ... Merger of two different units - denial of CENVAT credit on the ground that the said unmerged unit has taken the credit in respect of invoices issued in the name of other merged unit - Held that: - At the material time when the two units were different the objection could have been of any merit, but after the merger of two units into one, this objection cannot sustain. There is no time limit for availing Cenvat credit of inputs. Cenvat credit of inputs received earlier can be availed at a later date - In the instant case, the inputs invoices are dated 5-6-2006 to 31-7-2006 and the appellant have taken credit of the same on 31-1-2008. There is no dispute that the appellant have received the material in one of the two units, who later merged - credit allowed - appeal allowed - decided in favor of appellant. Issues:- Transfer of unutilized credit from merged factories- Denial of credit due to invoices issued in the name of another unit- Availing credit post-merger- Disallowance of credit by lower authorities- Appeal against the denial of creditTransfer of Unutilized Credit from Merged Factories:The appellants, M/s. Jayaswal Neco Industries Ltd., operated two separate factories before merging them into a single factory. The unutilized credit from both units was merged into the new unit with permission granted on 20-12-2007. However, prior to the merger, an audit on 29-10-2007 led to the denial of credit for invoices issued in the name of the other merged unit. The appellants paid the disputed amount through PLA.Denial of Credit Due to Invoices Issued in the Name of Another Unit:The Audit objection was based on the appellants availing Cenvat credit on inputs with invoices from the sister unit that later merged. The show cause notice sought reversal of the credit taken in response to the objection. The appellant argued that there was no allegation of non-receipt of goods and that they had already paid the disputed amount through PLA to resolve the issue.Availing Credit Post-Merger:After the merger and permission to transfer credit, the appellants attempted to avail credit on the same invoices again. The appellant's argument was that since the two units had merged, the objection raised in the audit regarding invoices issued in the name of the unmerged unit should not apply post-merger. The appellant contended that they rightfully availed the credit after the merger as the objection was no longer valid.Disallowance of Credit by Lower Authorities:The lower authorities confirmed the show cause notice seeking the reversal of credit taken by the appellant. However, the learned Counsel for the appellant argued that since there was no allegation of non-receipt of goods or misuse of credit, the denial of credit was unwarranted.Appeal Against the Denial of Credit:The Tribunal, after considering the arguments, found that the objection raised during the audit regarding invoices from the sister unit lost merit post-merger. The Tribunal noted that there was no time limit for availing Cenvat credit of inputs, and since the inputs were received by one of the units that later merged, the denial of credit was incorrect. Consequently, the appeal was allowed, and the impugned order disallowing the credit was set aside.