AI Drafter 
TaxTMI 
TaxTMI 
2015 (12) TMI 1304
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.... Polymers Ltd. amalgamated with the respondents M/s. Supreme Petrochem, Ltd. Consequent to amalgamation, the respondents vide letter dated 14.07.2008 applied for transfer of cenvat credit lying unutilized in the accounts of M/s. SPL Polymers Ltd. The Asst. Commissioner vide letter dated 17.03.2009 permitted the respondents to transfer unutilized credit of Rs. 42,64,679/- against their total claim of Rs. 87,17,640/-. There was no order permitting transfer of unutilized credit of Rs. 44,52,961/-. Vide SCN dated 13.07.2009, the Jt. Commissioner denied the transfer of unutilized credit of Rs. 44,62,413/- along with interest and penalty attributable to inputs, not in stock and proposed to recover the amount of unutilized credit already transferr....
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....ground that Rule 10(3) of CCR do not permit such transfer of unutilized credit. Hence the present appeal. 3. The Ld. AR, Shri B. Balamurugan, AC., on behalf of the Revenue submits that unutilized credit is not transferable as there is no provision under Rule 10 of the Cenvat Credit Rules, 2004 for transfer of credit without transfer of inputs relating to such credit balance. He reiterated the grounds of appeal and submits that as per Rule 10 of the Cenvat Credit Rules, 2004, when a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in the ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to a joint venture with the specific provisi....
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....ferable even if there is no corresponding stock of inputs available at the point of time. He relies on the following case laws :- 1. Sunpack Vs. CCE. Pondicherry 2008 (223) ELT 95 (Tri.-Chen.) 2. CCE, Pondicherry Vs. Cestat 2008 (230) ELT 209 (Mad.) 3. Shree Rama Multi-tech Ltd. Vs. CCE, Pondicherry 2007 (217) ELT 136 (Tri.-Chen.) 4. CCE, Pondicherry Vs. Cestat 2009 (240) ELT 367 (Mad.) 5. Kevin Enterprises Pvt. Ltd. Vs. CCE, Vadodara 2007 (219) ELT 181 (Tri.-Mum.) 6. AAR AAY Products Pvt. Ltd. Vs. CCE, N.Delhi 2003 (157) ELT 40 (Tri.-Del.) 7. New Chemi Industries Ltd. Vs. CCE, Mumbai 2005 (191) ELT 614 (Tri.-Mum.) 8. CCE, Bangalore Vs. Tata Auto Comp. Systems Ltd. 2009....
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....t Credit Rules 2004., which is reproduced below: "10(3) : The transfer of the Cenvat Credit under Sub-rule (1) and (2) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs, or capital goods, on which credit has been availed or are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise or, as the case may be, Assistant Commissioner of Central Excise." It is very clear that the requirement of transfer of inputs would come into picture only if available and otherwise, the transfer of credit cannot be objected to if there was no stock of inputs. This ....
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.... was lying unutilized in the accounts of the amalgamating company ie., SPL Polymers Limited. 6. The Hon'ble High Court of Karnataka has upheld the order of the CESTAT Bangalore in Tata Auto Comp. Systems Ltd.(supra), which is reproduced as under:- "4. A perusal of the aforesaid Rules makes it very clear that if manufacturer of the final products shifts his factory to another site, the manufacturer shall be allowed to transfer the CENVAT credit lying unutilized in his accounts to such transferred factory. The said transfer is subject to the condition stipulated in Rule 10(3) of the Rules, which provides that such transfer is permitted only if the stock of inputs as such or in process, or the capital goods is also transferred alon....