Cenvat credit disallowance due to demerger

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This query is : Resolved

Vishvesh (Querist)

17 September 2007 A manufacturing company "A", through a due process of law and by scheme of arrangement approved by Hon'ble High Court, got demerged. The existing company "A” retained its legal entity and continued to exist as a project undertaking and executed its on-going domestic/local orders. The newly formed demerged company "B" became a 100%EOU. The export orders so far handled by company “A” and the land, plant, machinery, workers, staff, all future liabilities were transferred through a scheme of arrangement as above to company “B”, while the domestic orders and present liabilties were retained by Company “A”. Company “A” retained some of the old employees and some contract labourers for carrying out its activities. A revised layout of the factory showing the areas of operation of the two companies and the High Court Order copy were submitted to Central Excise Department as well as Customs Authorities. Company “A” continued to file monthly return and other periodical reports to Central Excise Department. The Central Excise Department after obtaining recorded statements from some of the employees and managers and production staff took away some files records and other documents from the two companies and alleged that Company “A” does not have manufacturing facilities as the machinery work force etc were transferred to company “B”. It issued show cause notice disallowing the entire cenvat credit available in the books of company “A” and also the cenvat amounts already availed for clearing its manufactured goods after the demerger date. It may be noted that Company “A” continued to execute its domestic job orders. Is the Department justified in disallowing the cenvat credit? I request our expert panel for their valued opinion on this serious issue. Sorry my query is quite lengthy as my intention is to present full facts of the case. If there are any decided case laws, please let me know. Thanks a lot.