TaxTMI 
TaxTMI 
2017 (12) TMI 955
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....Diwali Vacation, on account of paucity of time, the Judgment could not be dictated, and therefore, the appeal is kept today for dictation of Judgment. 2 With a view to appreciate the submissions made on behalf of the learned counsel for the parties, it will be necessary to make a brief reference to the facts of the case. 3 The appellant-assessee has taken an exception by way of this Appeal under section 35G of Central Excise Act,1944 (for short "the said Act") to the impugned Judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short `the Appellate Tribunal'). 4 The appellant-assessee was having a factory/mill at Dadar, Mumbai which consisted of spinning, weaving and....
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.... was issued calling upon the appellant to show cause as to why the application for transfer of unutilised credit from Dadar to Dhamni unit should not be rejected on the ground that entire factory was not transferred as required by Rule 8 of Cenvat Credit Rules,2002 (for short "the Cenvat Rules"). 6 After hearing the appellant, by order dated 19th March 2004, the Assistant Commissioner of Central Excise rejected the application made by the appellant on 17th January 2004. Being aggrieved by the said order, an appeal was preferred by the appellant under section 35 of the said Act before the Commissioner of Central Excise (Appeals). By order dated 19th January 2005, the First Appellate Authority allowed the appeal and directed to grant of ca....
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....fore the First Appellate Authority which was disposed of by order dated 1st November 2006. 8 By the impugned order, the aforesaid appeals preferred by the respondent-revenue were allowed by the Appellate Tribunal on the ground that the entire factory was not shifted by the appellant to Dhamni and therefore, Rule 8 of the CENVAT Rules will not apply. 9 This Appeal was admitted by order dated 13th March 2008 on the substantial questions of law formulated in paragraph 32 of grounds of appeal. Substantial questions of law in paragraph 32 read thus: "(a) Whether the Tribunal was right in holding that the Appellants are not entitled to transfer of unutilized credit under Rule 8 of the Cenvat Credit Rules,2002? (b) Whether Rule ....
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....lls Limited Vs. Union of India 1987 (32) E.L.T 234 (SC). He would therefore submit that the view taken by the Appellate Tribunal is completely erroneous. The learned counsel for the respondent supported the impugned Judgment and order by pointing out that on plain reading of Sub-Rule 1 of Rule 8 of the CENVAT Rules, unless the entire factory is shifted to another site, Rule 8 cannot be applied. He would submit that no interference is called for in the Judgment and order. 11 We have given careful consideration to the submissions. Firstly, it will be necessary to make a reference to Rule 8 of CENVAT Rules which reads thus: "RULE 8. Transfer of CENVAT credit (1) If a manufacturer of the final products shifts his factory to another site o....
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....hineries of spinning and cone winding are shifted /to be shifted to our spinning unit at Dhamni. We shall be transferring yarn manufactured at our Dhamni unit to Dadar for manufacturing of grey and processed fabric. Processed fabric will be cleared for home consumption and exports from Dadar unit." (Underline added) 14 Thus, it is very clear that the appellant came out with the case that the activity of only the spinning unit at Dadar has been stopped and has been shifted to its spinning unit at Dhamni. There is a specific statement that yarn manufactured at Dhamni will be transferred to unit at Dadar for manufacturing of grey and processed fabric. The processed fabric will be cleared and sold for home consumption and exports from ....