Custom, Excise & Service Tax Tribunal
M/S. Indian Oil Corporation Ltd vs Commissioner Of Central Excise on 3 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2969 of 2011 SM
[Arising out of Order-In-Appeal No.151/RPR-I/2011 dated 26.9.2011 passed by Commissioner of Central Excise (Appeals), Raipur ]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Indian Oil Corporation Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Raipur Appearance:
Ms. Surabhi Sinha, Advocate for the Appellants
Shri M S Negi, AR for the Respondent
Date of Hearing/ Decision : 3.07.2014
ORDER NO. FO/ 52787 /2014- (SM)
Per Archana Wadhwa:
The appellants is a corporate body having its working place at different addresses. It is seen that present factory located at PO Gopal Pur was closed by the appellant and its assets including the capital goods, raw material as also the final product etc. were transferred to their other unit located at Kusumunda. Appellant applied for transfer of unutilized credit of Rs.1,98,916/- to their Kusumunda unit or alternatively claimed refund of the same.
2. The lower authorities denied the refund claim on the ground that there is no provisions for refund of the Cenvat credit. Their request for transfer of credit to Kusumunda unit was also rejected by the lower authorities on the ground that provisions of Rule 10 of Central Excise Rules, which allow such transfer, are applicable only in case of shifting of factory on account of ownership or sale, merger, amalgamation, lease or transfer of the factory to a joint venture and are not applicable to the closure of factory. Accordingly, he rejected the appellants request.
3. Learned advocate appearing for the appellant submits that as the corporate body M/s. IOC has decided to close down its various units located at different places. The identical requests were made before the jurisdictional authorities of other places, which stand either accepted by the original adjudicating authority or by Commissioner (Appeals). She draws my attention to another order dated 18.2.2010 passed by Commissioner (Appeals), vide which he has allowed the transfer of unutilized Cenvat credit to their sister unit at Kusumunda only. The said order stand accepted by the Revenue and no appeal has been filed. She also draws my attention to various decisions of the Tribunal wherein in the identical circumstances of closure of one factory and on transfer of inputs / capital goods to other factory, transfer of unutilized Cenvat credit has been allowed.
4. Learned DR submits that the interpretation of provisions of Rule 10 does not allow transfer of unutilized credit in the case of closure of the factory. He also submits that factory was closed in February 2009 and the registration was surrendered in February, 2009 itself. However, the appellant made an application for transfer of unutilized credit on 1.7.2010, that is almost after a period of one and a half year. At the time of making an application, there were no stock lying with the appellant. However, on being questioned as to whether there is any time limit in terms of Rule 10 for making application for transfer of unutilized credit. Learned DR fairly submits that said Rule does not provide any time limit but submits that in case of such huge delay, it is not possible for the Revenue to verify the fact of transfer of goods to other unit. He also submits that once the license has been surrendered, the factory cease to operate and as such, provisions of Rule 10 did not apply to such a factory.
5. I have considered the submissions made by both the sides. The facts are not much in dispute. The provisions of Rule 10 allow an assessee to transfer unutilized credit to their sister concern, with a rider that the goods lying in the factory as on the date would also get transferred. Admittedly, the appellant had closed their unit and had transferred all the goods to Kusumunda, which is not a factory belonging to third person but is their own factory.
As such, it can be safely concluded that the factory located at the present address stand transferred or merged with the factory located at Kusumunda in which case the provisions of Rule 10 would apply. Not only that, I have seen the decisions relied by the appellant allowing such transfer of credit in respect of factories located at one place and receiving all the goods to other factory of the same manufacturers located at other places on the closure of the one factory. One such reference can be made to the decision in the case of Fabrico (India) Pvt. Ltd. vs. CCE, Meerut [2012 (284) ELT 69 (Tri Del)]; Shree Rama Multi-Tech Ltd. vs. CCE, Pondicherry [2007 (217) ELT 136 (Tri-Chennai)] and; Gland Pharma Ltd. vs. CCE, Hyderabad [ 2006 (193) ELT 344 (Tri-Bang)]. Not only that, it is seen that other Commissioner (Appeals), vide their orders have allowed such transfer of credit in case of closure of the assessee factory at other places and transfer of other goods to Kusumunda factory in respect of proceedings relatable to other factories which were also closed and the goods were transferred to Kusumunda. The said decision have reportedly not been appealed against by the Revenue or set aside by any higher authorities.
7. In view of the foregoing, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
(Dictated and pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
ss
??
??
??
??
6
E/2969/2011