TMI Blog2014 (7) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit on capital goods after conversion of DTA into 100% E.O.U. and proceedings were initiated which culminated in Order-in-Original dated 29.5.2006 ordering to recover Cenvat credit of ₹ 33,40,011/- with interest and also imposed penalty of ₹ 50,000/- under Rule 15(1) of the Cenvat Credit Rules, 2002. On appeal filed by the respondent, in the impugned order dated 16.10.2006, the Commissioner (Appeals) held that the respondent was rightly eligible to take credit. Revenue is in appeal against this decision. 2. Learned AR submits that according to paragraph 9.28 of the Foreign Trade Policy 1997-2002, existing DTA unit could apply for conversion into 100% E.O.U. but no concession in duties and taxes would be available under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. According to Rule 4 of Cenvat Credit Rules,2004, Cenvat credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year. The Rule further provides that the balance of Cenvat credit may be taken in any financial year subsequent to the financial year in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) has relied upon two decisions to support his conclusion. In the case of Hindustan Coco-cola Beverages Pvt. Ltd. vs. Commissioner of Central Excise, Mumbai-III [2005 (187) E.L.T. 318 (Tri.-Mumbai)], the appellant was manufacturer of Maaza, a fruit juice product, which was exempted from 1.3.2001. Prior to that date, the appellant had obtained capital goods for use in the manufacture of final product Maaza and availed 50% of Cenvat credit on such capital goods during the year 2000-01 and took credit of remaining 50% in 2001-02 which was objected and denied. The Tribunal took the view that benefit of eligibility of remaining 50% of credit which was deferred has to be treated as deferred credit and therefore, in the subsequent yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been created even in respect of 100% E.O.U. since provisions of 100% E.O.U. as well as DTA are same. I find myself in agreement with this submission. 6. Even though, in my opinion, the respondent should not have been denied Cenvat credit on the capital goods to the extent of balance 50% of credit, I am unable to take a different view in view of the statutory provisions. Tribunal being a creation of statute cannot go beyond the statute. Therefore I can only sympathise with the assessee. In such a situation, the appeal filed by Revenue has to be allowed and accordingly, the same is allowed. 7. As regards penalty, in view of my opinion expressed above, I do not find any justification of penalty imposed on the respondent and accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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