Custom, Excise & Service Tax Tribunal
M/S. N C Cables Ltd vs C.C.E.-Delhi-Ii on 11 December, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Excise Appeal No. 56832 of 2013-Ex(SM)
[Arising out of Order-in-Appeal No. 07/CE/D-II/13 dated 17.01.2013 by the Commissioner (Appeals) of Central Excise, Delhi-II].
M/s. N C Cables Ltd. .Appellants
Vs.
C.C.E.-Delhi-II .Respondent
Appearance:
Shri Rajesh Kumar, Advocate for the Appellants Shri V. Batra, DR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 11.12.2014 FINAL ORDER NO. 54758/2014-Ex(SM) Per Ashok Jindal:
The appellant is in appeal against the impugned order for denial of Cenvat Credit lying unutilized in the account of M/s National Cable Industries which was taken over by the appellant by agreement dated 10.02.2011 which was effective from 01.12.2012. The facts of the case are that the appellant vide agreement dated 10.02.2011 took over the business of M/s National Cable Industries which was effective from 01.12.2012 and sought registration in their name. Thereafter, the concerned inspector visited the factory of the appellant on 11.04.2011 and verified the records and granted registration. After obtaining registration appellant filed their regular ER-1 returns showing that Cenvat Credit lying in the account of M/s National Cable industries is available for them to take Cenvat Credit. Thereafter, after a letter was written by superintendent on 13.02.2012 to deny the Cenvat Credit and demanded the same from the appellant. Appellant replied the same on 05.03.2012 but show cause notice was issued demanding duty along with interest and penalty of Rs.10,000/- which was confirmed by way of adjudication.
2. Aggrieved from the said order appellant is before me.
3. The Ld. Counsel for the appellant submits that Rule 10 of the Cenvat Credit Rules 2004 is applicable to the facts of this case and as per Rule 10(3) of the said rules the appellant has rightly taken the credit as they have intimated to the department for available credit by ER returns regularly and the concerned inspector also visited their factory and verified the said evidence. He further submits that letter dated 05.03.2012 may be treated as to seek permission to take the credit which they have already taken. He further submits that rule 10(3) of the Cenvat Credit Rules 2004 does not speak anything about to take permission prior to availment of credit. Therefore the allegation that the appellant has taken the credit without permission is not sustainable. To support his contention he relied on the decision of the Tribunal in the case of C.C.E. Pune Vs. Dow Agro Sciences India (P) Ltd. - 2010 (261) E.L.T. 225 (Tri Mumbai) and in the case of Om Glass Works Pvt. Ltd. Vs. C.C.E. Kanpur - 2012 (279) E.L.T. 313 (Tri Delhi).
4. On the other hand Ld. AR supported the impugned order of and stated the finding of the same.
5. Heard the parties. Considered the submission.
6. In this case the sole allegation against the appellant is that there is no such permission to take Cenvat Credit as per rule 10 (3) of the Cenvat Credit Rules 2004. I have gone through the provision of the rule 10(3) which is as under:
The transfer of the Cenvat Credit under sub-rules (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 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.
7. As per the said provision there is no requirement to take prior permission to take Cenvat Credit from the concerned authorities but credit is available to the assessee on being satisfied by the authorities that credit has been taken correctly. As the appellant has taken the credit and informed to the department they filed the ER return regularly and same has been accepted by the department, therefore question of taking any permission does not arise.
8. In these circumstances, as held by the tribunal in the case of the Om Glass Works Pvt. Ltd. (Supra), I hold that Cenvat Credit is available to the appellant.
9. Accordingly appeal is allowed with consequential relief if any.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
55752 of 2013-Ex(SM)