Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Megha Engineering & Infrastructures ... on 6 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21283 / 2014 Application(s) Involved: E/MISC/643/2012; E/MISC/25861/2013 in E/152/2012-DB Appeal(s) Involved: E/152/2012-DB [Arising out of Order-in-Appeal No.24 & 25/2011 (T) CE dated 05/10/2011 passed by the Commissioner of Central Excise & Customs (Appeals), Guntur.] Commissioner of Central Excise, Customs & Service Tax TIRUPATI No. 9/86-A, BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI, - 517502 AP Appellant(s) Versus MEGHA ENGINEERING & INFRASTRUCTURES LTD SY.NO.143, 137 AND 50, VELIDENDIA VILLAGE, LINGALA MANDAL, KADAPA DIST AP Respondent(s)
Appearance:
Mr. N. Jagadish, Superintendent (AR) For the Appellant Mr. B. Venugopal, Advocate SWAMY ASSOCIATES G-8, FORTUNA ICON, APARTMENTS,JODIDAR ASHWATHAPPA FARM, SAHAKARA NAGAR, BANGALORE 560 092 For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 06/08/2014 Date of Decision: 06/08/2014 Order Per : B.S.V.MURTHY The assessee had filed a miscellaneous application No.634/2012 submitting that they had not received the copy of the appeal paper-book filed by the Revenue nor the notice of hearing and therefore the stay order passed by this Tribunal may be recalled since the observation therein that there is no representation for the respondent despite notice is incorrect. Further, there is also another application for early hearing of the appeal filed by the Revenue No.25861/2013 seeking early hearing of the appeal since the amount involved is more than Rs.1.28 crores.
2. When the matter was called on 31.7.2014, the learned counsel for the respondent submitted that they do not have the copy of the appeal paper-book filed by the Revenue even now and he submitted that copy may be provided. Taking note of the stay order passed by this Tribunal wherein the order was found to be ex parte and further the early hearing application filed by the Revenue, it was felt that it would be in the interest of justice to both the sides if the matter is heard finally. Accordingly both the sides were informed that the matter will be heard on 6.8.2014 and in view of the above, the miscellaneous application filed by the assessee for recalling the stay order has become infructuous and accordingly rejected. As regards the appeal filed by the Revenue, since the matter is being taken up today, it is considered as allowed.
3. M/s. Megha Engineering and Infrastructure Ltd. were registered with this Division vide Registration Certificate No. AAECM7627AXM004 for their unit at Sy. No.143, 137 & 50, Velidendla (V), Lingala (M), Kadapa District in the jurisdiction of Chilamkur Range and Registration No.AAECM7627AXM007 for their unit at Sy. No.433, 434, 435 & 454, Settivaripalli (V), Mydukur (M), Kadapa District in the jurisdiction of Proddatur Range (hereinafter referred as assessee) and they were manufacturers of M. S. pipes and M. S. Scrap falling under the chapter heading 73051921 and 72944900 respectively. They have surrendered their registration certificate before the respective Range Officers stating that they do not require registration in view of the fact that they have finished their projects. They have sought the permission of the Assistant Commissioner vide their letter dated 11.11.2009 for transfer of unutilized CENVAT credit of Rs.1,22,50,162/- lying in balance as on the date of closure of their factory at Velidandla to their factory namely M/s. Megha Engineering & Infrastructrures Ltd., and they have also requested vide their letter dated 11.11.2009, for transfer of unutilized CENVAT credit of Rs.5,55,406/- at Settivaripally Unit to their unit M/s. Megha Engineering & Infrastructures Ltd., Plot No.34B, Phase-I, IDA, Jeedimetla, R.R. Dist. ECC No. AAECM7627AXM002 situated in Hyderabad. The above permissions were sought under Rule 10 of the CENVAT Credit Rules, 2004 claiming that they have shifted their closed units to the units mentioned above.
3.1 In this regard, the jurisdictional Range Officers were asked to submit a verification report on the requests made by the assessee. The Range Officer, Chilamkur vide his letter OC No.59/2010 dated 22.4.2010 submitted his detailed report stating that the assessees have filed ER-1 returns up to November 2009 (till 19.11.2009) and as per their return for the month of November 2009, they are having a balance of unutilized CENVAT credit of Rs.1,22,50,162/- )BED Rs.86,82,352/- + ED Cess of Rs.23,78,555/- and H&S Ed. Cess of Rs.1,89,255/-). The Range Officer (Chilamkur) also reported that all the inputs viz., MS plates, Cement, wiremesh, etc., on which the CENVAT credit was availed by the assessee were put to use for manufacture of MS pipes and they have partly cleared certain inputs as such on payment of duty and that there are no inputs or capital goods available at the time of closure of the unit. As regards accumulation of huge CENVAT credit, it is reported by the Range Officer, Chilamkur that most of the receipt of inputs by the assessee was when the duty rates were 16% and 14% and the clearances were effected when the duty rates were 14%, 10% and 8%.
3.2 The Range Officer, Proddatur vide his report OC No.24/2011 dated 20.4.2011 has reported that on verification of the ER-1 Returns of M/s. Megha Engineering & Infrastructures Ltd. Settivaripalli, Mydukur, Kadapa district bearing ECC No.AAECM7627AXM007 there is a CENVAT credit balance of Rs.5,55,406/- (Rs.5,39,486/- (CENVAT), Rs.10,717/- of Education Cess and Rs.5,203/- of S & H Cess) lying in their account. The Range Officer (Proddatur) also reported that all the inputs viz., MS plates, Cement, Wiremesh, etc., on which the credit of CENVAT was availed by the assessee were put to use for manufacture of MS pipes and they have partly cleared certain inputs as such on payment of duty and that there are no inputs or capital goods available at the time of closure of the unit. As regards accumulation of huge CENVAT credit, it is reported by the Range Officer, Proddatur that most of the receipt of inputs by the assessee was when the duty rates were 16% and 14% and the clearances were effected when the duty rates were 14%, 10% and 8%.
4. The learned AR submits that in this case the reports of the Range Officers did not mention anything about the capital goods and there is no indication as to whether capital goods were transferred or not; whether they were available or not; whether any credit was involved there or not. As regards inputs, he submits that he is not pressing the point since there are Tribunals decisions taking a view that even if inputs are not transferred, credit can be transferred. He seeks remand of the matter to the original authority so that his submissions regarding capital goods can be got verified and matter decided afresh.
5. After hearing both sides, we do not find any merits in the submissions made by the learned AR. This is in view of the fact that today when the matter was called, the learned counsel submitted three delivery challans covering the movement of capital goods from the units to the new units. Further, he also submitted that there was no credit relating to capital goods in the books of accounts and therefore there was no transfer of credit. On going through the jurisdictional Range Officers reports available in both the orders of the lower authorities, we find that Commissioner (A) while coming to the conclusion that capital goods had been transferred and there is no credit to be transferred, has seen the delivery challans. Delivery challans numbers and the dates are available in paragraph 11 of the impugned order. In view of the fact that there is evidence of movement of capital goods and both the Range Officers have not mentioned anything specifically regarding credit relatable to capital goods and naturally, logical conclusion would be that there is no CENVAT credit attributable to the capital goods to be transferred to units. We do not find any reason to remand the matter for fresh consideration. In view of the above, appeal is rejected as devoid of any merits.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 4