TMI Blog2016 (6) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... trations have been given, one as a DTA and other as a 100% EOU, hence it should be considered as removal of capital goods and inputs. We do not agree to this proposition as it is undisputed that the EOU is also named as Behr India Ltd. (100% EOU) and Balance-sheet of the appellant is one and the same though the legal status of the EOU is bit different than the DTA, it cannot be said that both are separate units. In our view this observation of the adjudicating authority cannot withstand scrutiny of the law - appellant has made out a case in his favour - Demand set aside - Decided in favor of assessee. - Appeal No. E/1407/05 - Final Order No. A/87831/2016-WZB/EB - Dated:- 10-5-2016 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI RAJU, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal goods and inputs , hence provisions of Rule 3(4) is not attracted and that the issue is covered by the judgment of the Tribunal in the case of Jamna Auto Industries Ltd. - 2001 (130) ELT 181. The adjudicating authority after following the due process of law, came to a conclusion that there is no force in the statements made by the appellant. Coming to such a conclusion, he confirmed the demand raised with interest and also imposed penalties. 3. Learned Counsel, after taking us through the entire case records, submits that the 100% EOU is also having the same name as the appellant; there is no transfer or sale of the goods to any other unit and the entire capital goods and inputs were within the factory premises. He would submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his submission that DTA unit and the EOU are separate and the transferring to inputs and capital goods to 100% EOU is nothing but removal of the duty paid capital goods and the inputs. It is his submission that the appellant is required to discharge the duty liability on such removal. He relies upon the statement of the Hon'ble High Court of Karnataka in the case of Associated Cement Co. Ltd. - 2009 (236) ELT 240 (Kar) for the proposition that physical removal of the goods to another company is nothing short of physical removal in respect of inputs for which MODVAT credit was availed. Hence, the provision of Cenvat Credit Rules applies. He would also relied upon other judgment of Hon'ble High Court of Delhi in the case of Pure Dri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have misdirected the finding and came to conclusion that the appellant is required to reverse the CENVAT Credit. 5.3 Firstly, we find that the adjudicating authority has held that through two different legal entities and two different registrations have been given, one as a DTA and other as a 100% EOU, hence it should be considered as removal of capital goods and inputs. We do not agree to this proposition as it is undisputed that the EOU is also named as Behr India Ltd. (100% EOU) and Balance-sheet of the appellant is one and the same though the legal status of the EOU is bit different than the DTA, it cannot be said that both are separate units. In our view this observation of the adjudicating authority cannot withstand scrutiny of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as arisen from the morphing of the manufacturing operation as an Export Oriented Unit. An infrequent occurrence, it is even more rare for such an occurrence to be accompanied by transfer of raw materials in this manner. That, probably, is one of the reasons for the absence of any reference to such a contingency in the CENVAT Credit Rules, 2002. It is more likely that it was not perceived as having an impact at all on revenue. The transformation does not alter the works undertaken in the unit. Nor is the statutory jurisdiction altered. Eligibility for CENVAT Credit remains unchanged except that, as an Export Oriented Unit, duty-free procurement is an alternative. 7. Excise duty is fastened on goods and not on the status of the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vik Asia Ltd. (supra). While coming to such a conclusion, the judgment of the Hon'ble Bombay High Court in the case of Sandoz Pvt. Ltd. was considered. 5.4 As regards the case laws relied upon by the learned AR that even if there is no physical removal, it should be considered as removal and transaction of absolute sale as held in ACC Ltd. (supra). In our view the Hon'ble High Court came to such a conclusion by relying upon the agreement between the parties involved, in which case the respondent therein had sold the power unit to another company, M/s Tata Electric Company. Hence, Hon'ble High Court took a view that this amounts to nothing short physical removal. 5.5 As regards the case law relied upon by the learned AR in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
