IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.7.2008 CORAM THE HONOURABLE MR. JUSTICE K. RAVIRAJA PANDIAN AND THE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJA CIVIL MISCELLANEOUS APPEAL NO.1808 OF 2008 Commissioner of Central Excise Pondicherry Commissionarate Goubert Avenue Beach Road Pondicherry – 605 001. ... Appellant Vs. 1. Customs, Excise and Service Tax Appellate Tribunal Chennai, South Zonal Bench Shastri Bhavan Annexe Ist Floor 26, Haddows Road Chennai – 600 006. 2. M/s. Sunpack R.S.No.C-52, PIPDIC Industrial Estate Mettupalayam Pondicherry. ... Respondents Civil Miscellaneous Appeal filed under Section 35G of the Central Excise Act, 1944 against the Final Order No.1139/2007, dated 7.9.2007 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Southern Regional Bench, Chennai – 600 006. For Appellant : Mr. C.A.Duraimanickam J U D G M E N T (Judgment of the Court was delivered by K.Raviraja Pandian, J.) The Department has come up on appeal against Final Order No.1139/2007, dated 7.9.2007 made by the Customs, Excise and Service Tax Appellate Tribunal, (hereinafter referred to as "CESTAT"), Southern Regional Bench, Chennai – 600 006. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts of the case are as follows: The second respondent is a manufacturer of polypropylene bags and tubing, thereof which is classified under Chapter 39 of the Central Excise Tariff Act and having its factory located at R.S.Nos.91/6, 91/7, 91/12, Pondy-Cuddalore Main Road, Kirumampakkam, Pondicherry until 31.3.2004. With effect from 1.4.2004, the second respondent shifted its factory to C-52, PIPDIC Industrial Estate, Mettupalayam and got itself registered with the appellant authorities. The Commissioner of Clentral Excise, Pondicherry issued a show cause notice dated 4.4.2005 calling upon the second respondent to show cause as to why (i) an amount of Rs.6,62,971/- (Rupees six lakhs sixty two thousand nine hundred and seventy one only) being the credit taken by them should not be recovered under Rule 12 of Central Credit Rules 2002 read with Section 11A of Central Excise Act 1944, (ii) penalty should not be imposed on them under Rule 13 of Cenvat Credit rules 2002, and (iii) appropriate interest should not be demanded under Rule 12 of Cenvat Credit Rules 2002 read with Section 11AB of the Central Excise Act 1944." The reply submitted by the second respondent has been considered by the Commissioner, who by his order dated 1.6.2005 accepting the explanation submitted by the second respondent and having discussed the case with reference to the relevant rules, dropped the proceedings initiated by the show cause notice dated 4.4.2005. That order came to be reviewed by the Commissioner, Central Excise, who by order dated 6.4.2006 exercising his power under Section 35E(2) of the Central Excise Act, 1944, directed the Assistant commissioner of Central Excise, II Division, Pondicherry to file an application before the Commissioner of Central Excise (Appeals), Chennai to set aside the order in original. On such appeal being filed, the Commissioner of Central Excise by his order dated 12.3.2007 partly granted the relief in favour of the second respondent and partly rejected on the ground of excess availment of credit. The second respondent filed an appeal before the CESTAT and the CESTAT allowed the appeal. The correctness of the said order is now canvassed by the Department by framing the following questions of law: "1. Whether the first respondent is right in law by passing an order contrary to Rule 8 of the CENVAT Credit Rules, 2002 and the Board's circular No.1/93- CX.8 dated 5.1.1993 (in file F.No.263/9/92-CS.8)? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the Hon'ble CESTAT ought to have dismissed the Petition itself as prima facie not maintainable being contrary to law?" 3. We heard the argument of the learned counsel appearing for the Department and perused the materials on record. 4, The point in issue is, whether the second respondent complied with the previsions of Rule 8 of the Cenvat Credit Rules. 5. Rule 8 of the CENVAT Credit Rules reads as follows:- " Rule 8. Transfer of Credit. 1) If a manufacturer of final products shifts his factory no another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of factory to a joint venture with the specific provision for transfer of liabilities of such factory, then the manufacturer shall be allowed to transfer the CENVAT credit lying unutilized in his accounts to such transferred, sold, merged, lease or amalgamated factory. 2) The transfer of cenvat credit under sub rule (1) shall be allowed only if the stock of the inputs as such or in process or the capital goods is also transferred along with the factory 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 Commissioner." 6. As per the Rule, if a manufacturer of the final products shifts his factory to another site, then the manufacturer shall be allowed to transfer the Cenvat Credit lying unutilised in his accounts to such transferred factory. The transfer of Cenvat credit 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 to the new site and the inputs or the capital goods on which credit had been taken are duly accounted for to the satisfaction of the Deputy Commissioner, Central Excise. 7. In the instant case, the second respondent has shifted the factory to the new site from Cuddalore to Pondicherry. The second respondent has transferred a quantity of 16548.12 kgs of inputs i.e., plastic granules and one capital goods i.e., automatic bag machine, which were the available inputs and capital goods to the new site, which has been found correct as per the verification report submitted by the two respective Range officers. The second https://hcservices.ecourts.gov.in/hcservices/ respondent has informed the Deputy Commissioner about the shifting of the factory and on receipt of such information, the Deputy Commissioner directed the Range Superintendent to cause necessary verification of the receipt of the amount of inputs and capital goods. On causing physical verification, the Range Officer of the new premises in his letter dated 29.11.2004 reported that the second respondent has received 16548.12kgs of plastic granules as inputs and one automatic bag machine to the new premises and further reported that the inputs and capital goods were already entered in the respective registers. Further, it is on record by way of verification report from the Range Officer of old premises that there was credit balance of Rs.5,84,539/- in respect of inputs and Rs.78,432/- in respect of capital goods in the respective Modvat registers as unutilised credit balance and 16,548.12kgs of inputs, one automatic bag making machine are the inputs and capital goods available with the second respondent, which is evident from the letter of the Range Officer dated 27.10.2004. 8. From the above, it is clear that the capital goods, the inputs and the balance unutilsied credit balance in question have been properly received and accounted for by the assessee in the respective registers. The Rule does not require that the assessee can transfer the credit corresponding only to the quantum of inputs transferred to the new factory, but permits the assessee to transfer the available credits along with inputs and capital goods in stock at the factory to the new location. Thus, requirement of Rule 8 has been fulfilled by the second respondent. 9. Hence, we find no discrepancy or infirmity has been pointed out by the counsel for the Department and we do not find any infirmity in the order of the Tribunal or any question of law is left to be undecided for entertainment of this appeal. Therefore, the appeal is dismissed. No costs. kb/usk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Customs, Excise and Service Tax Appellate Tribunal Chennai, South Zonal Bench Shastri Bhavan Annexe Ist Floor 26, Haddows Road Chennai – 600 006. 1 cc to Mr.C.A.Duraimanickam, Advocate, SR.36066 ku (co) dv/29.7. C.M.A.No.1808 of 2008 https://hcservices.ecourts.gov.in/hcservices/