TaxTMI 
TaxTMI 
2011 (8) TMI 666
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.... 100% EOU scheme manufacturing personal computers and another their unit in Pondicherry in the name of Hewlett Packard India Private Limited., for manufacture of computers and printers. The Pondicherry unit availed input credit for the manufacture of computers and printers. There was amalgamation of the Pondicherry unit with the assessee unit at Bangalore vide order dated 28-5-2004 of the High Court of Karnataka. The Pondicherry unit stopped production with effect from October, 2004 onwards. They transferred the unutilized credit to the Bangalore Unit. On the direction of the Department the credit taken was reversed. Thereafter the assessee submitted a letter dated 28-12-2005 to the Pondicherry authorities and requested for permission to tr....
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..... According to him, the final products manufactured by the Pondicherry unit were already exempted with effect from 9-7-2004. Therefore, he remanded the matter to the lower authority to issue a speaking order. Aggrieved by the said order, the assessee preferred an appeal to the Tribunal. Relying on Rule 10(1) of the Rules, the Tribunal held that the Rule provides for transfer of Cenvat credit lying unutilized in the event of shifting of a factory to another factory on account of amalgamation and therefore the assessee is legally entitled for the transfer under Rule 10(1) of the Rules. It was further held that sub-Rule(1) of Rule 11 provides for utilization of unutilized Cenvat credit by the transferee Company on such amalgamation. However, R....
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....redit shall lapse. She also pointed out that after the appellate Commissioner remanded the matter back to the assessing authority and he passed an order on merits. In tune with his rejection of the request of the assessee for availing the benefit, the assessee preferred an appeal to the Commissioner. By that time, the Tribunal has passed the impugned order. Following this impugned order the appellate Commissioner has set aside the order passed by the assessing authority. Therefore she submits that this appeal which originated on the basis of reply letter rejecting the benefit of Cenvat credit, the Tribunal could not have entertained the same and granted the relief to the assessee and therefore she submits that the impugned order has to be s....
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....site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner of Central Excise." Sub-Rule (1) of Rule 10 categorically declares the legal position. It states that when any manufacturer of 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 or amalgamation or transfer of the factory or joint venture with the specific provision for transfer of liabilities on such factories, then the manufacturer shall be allowed to transfer the Cenvat credit lying unutilized in his accounts to such tran....
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....r cleared for home consumption or for export." Sub-Rule (1) makes it very clear that Cenvat credit availed by a manufacturer under the earlier Rules of 2002, if it remains unutilized prior to 10th September, 2004, the said unutilized credit shall be allowed as Cenvat credit to the manufacturer under the Rules of 2004 and allowed to be utilized in accordance with the said Rules. The Explanation to this general Rule is provided under sub-Rule (2). If the manufacturer opts for an exemption from the payment of duty of excise leviable on goods manufactured by him under a Notification based on the value or the quantity of clearances in a financial year, then he would not be entitled to the benefit of both Rule 10 and Rule 11(1) of the Rules, T....
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....as the First Schedule) to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column(4) of the said Table; and (b) from so much of the Special duty of excise leviable thereon under the Second Schedule (hereinafter referred to as the Second Schedule) to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (5) of the said table, subject to the relevant conditions specified in the Annexure to this notification, and referred to in the corresponding entry in column (6) of the said Table." A bare perusal of the aforesaid Notification makes it very clear that the said exemption has no reference....