Custom, Excise & Service Tax Tribunal
Cce Goa vs Cosme Pharma Ltd on 2 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2844/04 Mum
(Arising out of Order-in-Appeal No. GOA/CEX/BKS/09/2004 dated 18.05.2004 passed by the Commissioner of Central Excise & Customs (Appeals), Goa)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Goa
:
Appellant
Versus
Cosme Pharma Ltd.
Respondent
Appearance Shri Navneet, Addl. Commissioner (A.R.) For appellants None For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 02.04.2014 Date of Decision : 02.04.2014 ORDER NO.
Per Ashok Jindal The Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) allowed the transfer Rs.40,14,221/- of CENVAT credit lying in balance on account of dissolution of parent firm and taken over by the respondent.
2. Brief facts of the case are that one M/s Menezes Pharmaceuticals was a partnership firm. The partnership stood dissolved by a Deed dated 10.02.2000. The assets and the liabilities of the said firm were taken over by the respondent Company. There was a balance of CENVAT credit of Rs.40,14,221/- in the RG23A Part II accounts of dissolved firm which has been taken over by the respondent. The same was denied by the Revenue on the premise that as there was no stock available at the time of dissolution of firm therefore, credit cannot be transferred. On appeal, the Commissioner (Appeals) set aside the order of denial of transfer of credit following the decision in the case of Aar Aay Products vs. CCE New Delhi 2003 (157) ELT 40 (Tri. Delhi) and held that as per Rule 57F (21) of the CER, 1944 there is no bar of transfer of the said credit. Aggrieved by the said order, the Revenue is before me.
3. None appeared on behalf of the respondent. The matter is taken for disposal as the appeal pertains to the year 2004. Heard learned A.R. and perused the records.
4. The contention of the learned A.R. is that on the date of transfer as there is no stock of material / packing material was available therefore credit cannot be transferred and the credit was available in the books of account on account of under-valuation of the goods cleared by the dissolved firm. Therefore, the said credit cannot be transferred.
4. The first issue is to be decided that as per Rule 57F (21) of the Central Excise Act, 1944 whether the respondents are entitled to transfer of stock of credit of the dissolved firm taken over by the respondent together with its assets and the liabilities of old firm. This issue came before this Tribunal in the case Aar Aay Products (supra) wherein it was held that stock of credit can be transferred. The same has been affirmed in the case of Dr. Reddys Laboratories Ltd. - 2005 (191) ELT 660 (Tri. Chennai). Therefore, I hold that the learned Commissioner (Appeals) has rightly allowed the transfer of CENVAT credit to the respondent.
4.1 The 2nd issue is that the credit attributable to the issue of settlement of issue of under-valuation, therefore, the credit cannot be transferred but there is no doubt that this credit is available in the books of dissolved firm and no provisions of Acts/Rules has been produced by the learned A.R., f any credit available in the statutory records on account of settlement of the issue of under-valuation the credit is not transferable. In these circumstances, the contention of the learned A.R. is not tenable. Hence the appeal filed by the Revenue deserves no merit hence dismissed by upholding the impugned order.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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