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TMI Blog2021 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... ushes, varnishes & resins. The appellant had a DTA unit known as Unit-II located close to the 100% EOU. The said DTA unit was registered under Central Excise. An application was made to the Development Commissioner for conversion of the said DTA unit into a 100% EOU & the same was allowed. Thereafter, the appellant requested to Development Commissioner, Kandla for permission to merge the two EOUs in terms of para 6.34 (10) of Foreign Trade Policy 2004-2009. Accordingly, they were granted permission for merger of new EOU with the existing EOU. The EOUs license was granted by the Assistant Commissioner, Central Excise, DIV-I Vapi to carry out the manufacturing activities in respect of colors, pigments, flushes, inks, resins, varnishes, etc. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d materials left from the lot imported duty free an advance licenses, due to non fulfillment of export obligation after 4 to 5 years. It was alleged that the said duty payment was recovery of the Customs Authorities and the credit was taken on the strength of challan which are not specified document under Sub-Rule (1) rule 9 of Cenvat credit Rules, 2004. It was alleged that there is no authority to take credit on challan. It was further alleged that Rule 10(3) of the Cenvat Credit Rules, 2004 mandates that the transfer of Cenvat Credit shall be allowed only if stock of inputs as such or in process or the capital goods is also transferred along with the factory or business premises to a new site or ownership and the inputs or capital goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e DTA on the date of conversion to EOU. It was also asserted that the said decision holds that Rule 10 of the Cenvat credit Rules, 2004 did not prohibit availing balance credit by EOU at the time of conversion. 3. Learned AR relies on the impugned order. 4. We have gone through the rival submission. We find that the impugned order the Commissioner holds that what was paid by the appellant due to failure to fulfill the export obligation in their erstwhile DTA unit were Customs recovery due to failure of assessee to comply with the conditions of the notification under advance licence scheme. We find that it may be true that the duties were paid due to failure of appellant to fulfill export obligation but that fact has no relevance. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llful mis- statement or suppression of fact on the part of the appellant and therefore the observations made in the impugned order are irrelevant. In fact the impugned order does not even allege that the said duty was recovered on account of fraud collusion etc. 4.3 The next issue raised by the impugned order relates to the document on the strength of which credit has been taken. The impugned order takes note of Rule 9 of Cenvat Credit rules, to hold that challans are not specified documents except in the circumstances when they are supplementary to the original invoice. It takes note of Rule 9(1) (b) of Cenvat Credit Rule,2004 which reads as follows:- "For removal of doubts, it is clarified that supplementary invoice shall also include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the year 2014 when time limit for availment of credit was specified, a limit of 1 year was given. In these circumstances, we do not find any merit in this argument of Commissioner also. 4.5 The next issue raised by the Commissioner relates to Rule 10 of the Cenvat Credit Rules. Rule 10 of the Cenvat Credit Rule reads as under:- "RULE 10. Transfer of CENVAT credit.- (1) if a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it is notice that the permission for conversion of DTA unit to EOU unit was initially granted by the Development of Commissioner, KASEZ, thereafter, the Assistance Commissioner of Central Excise and Customs, Div-Vapi granted license on 15.01.2007. However, from the record it is not clear if the exercise of dealing the transfer of stock of inputs as such or in process all the capital goods transferred was done. However, in the instance case, it is seen that the issue is not covered by the mischief of Rule 10. It is seen that the appellant merged two units in the year 2007. This duty was paid subsequently by the merged unit in the year 2008/2009. Thus, it is not a case falling within the ambit of Rule 10 of the Cenvat Credit Rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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