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2014 (7) TMI 433 - AT - Central ExciseAvailment of CENVAT Credit - Conversion of DTA Unit into 100% EOU - prior to 6.9.2004, 100% E.O.U. was not eligible for Cenvat credit at all. With effect from 6.9.2004, provisions were made for providing benefit of Cenvat credit to 100% E.O.U. also in respect of the duty paid by them. The question is whether in terms of this provision, the respondent could have taken credit in 2004-05 being balance 50% of credit on capital goods. - Held that:- an E.O.U. can take balance 50% of credit of duty paid on capital goods received in the previous fiscal when it was a DTA unit and continued as E.O.U. after conversion - the unit was a DTA till 18.11.2004 and on the date of conversion as a 100% E.O.U., it was eligible for Cenvat credit. Therefore, whatever the credit available to DTA was available to 100% E.O.U. also. Therefore, it can be said that vested right has been created even in respect of 100% E.O.U. since provisions of 100% E.O.U. as well as DTA are same. Assessee relied upon the tribunal decision in the case of GTN Exports Ltd. vs. C.C.E., Coimbatore [2008 (7) TMI 320 - CESTAT CHENNAI] and submits that in this case, it was held that an E.O.U. can take balance 50% of credit of duty paid on capital goods received in the previous fiscal when it was a DTA unit and continued as E.O.U. after conversion. - Revenue further points out that in this case, the unit was a DTA till 18.11.2004 and on the date of conversion as a 100% E.O.U., it was eligible for Cenvat credit. Therefore, whatever the credit available to DTA was available to 100% E.O.U. also. Therefore, it can be said that vested right has been created even in respect of 100% E.O.U. since provisions of 100% E.O.U. as well as DTA are same. Even though, the respondent should not have been denied Cenvat credit on the capital goods to the extent of balance 50% of credit, it is not possible to take a different view in view of the statutory provisions. Tribunal being a creation of statute cannot go beyond the statute - Credit denied, however, penalty imposed is set aside - Decided partly in favour of Revenue.
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