TMI Blog2021 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... sion etc. Document on the strength of which credit has been taken - HELD THAT:- 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 - Rule 9 permits taking of credit on challans, however, the impugned order holds that credit cannot be taken on the strength of all the challans. It holds that only when an additional amount on duty becomes payable that credit can be availed on the strength of the challans. In the instance case the original duty paying document is bill of entry and the challans are the documents on the strength of which additional duty has been paid. Thus, even going by the logic given by the Commissioner in the impugned order there is no bar on availing credit on the strength of challans - there are no merit in this argument of the Commissioner in the impugned order. Delay in taking of credit - HELD THAT:- In the instances case the duties were paid in the year 2008 and 2009 and credit was taken on 30.11.2009. The duty was paid in the year 2008/2009 and credit was availed on 30.11.2009. At the material time there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. Thereafter, a show cause notice was issued to the appellant alleging that during the process of conversion of DTA unit into EOU unit and merger of the same into the existing EOU unit all inputs lying on the date of merger in the new EOU unit (earlier DTA Unit) were transferred to the EOU Unit and Cenvat Credit was availed by EOU Unit. Moreover, the appellant had imported certain duty free inputs in the erstwhile DTA unit in respect of which they said DTA unit could not fulfill the export obligation as per undertaking given to DGFT. In respect of these inputs the appellant paid Customs Duty and interest and closed the advance licensees. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore all duties paid on such inputs are eligible as Cenvat Credit. He pointed out that it has not been in dispute that the said inputs received or laying in the DTA unit converted into EOU unit were not used for manufacture of finished goods. Learned Counsel relied on the decision of tribunal in the case of GTN and Exports Limited-2009 (240) ELT 53 (Tri.-Chennai), to assert that the OIO could go beyond the charges made in the SCN. The Learned Counsel relied on the decision of Tribunal in the case of Suryavanshi Spinning Mills Ltd-2004 (169) ELT 81 (Tri.-Bang.) To assert that the EOUs are entitled to take balance of credit relating to inputs/capital goods laying in the Cenvat account of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 which reads as follows:- For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar document evidencing payment of additional amount of additional duty leviable under section 3 of the Customs Tariff Act. It is notice that the said Rule permits taking of credit on challans, however, the impugned order holds that credit cannot be taken on the strength of all the challans. It holds that only when an additional amount on duty becomes payable that credit can be availed on the strength of the challans. We hold that in the instance case the original duty paying document is bill of entry and the challans are the documents on the strength of which additional duty has been paid. Thus, even going by the logic given by the Commissioner in the impugned order there is no bar on availing credit on the strength of challans. Thus, we find no merit in this argument of the Commissioner in the impugned order. 4.4 The next issue raised by the Commissioner relates to the delay in taking of credit. In the instances case the duties were paid in the year 2008 and 2009 and credit was taken on 30.11.2009. The Commissioner has relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs or capital goods on which the credit has been availed are duly account for to the satisfaction of Deputy Commissioner of Central Excise as a case may be. In the instance 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 the same is therefore not applicable to the instance case. 5. Thus, we find no merit in the impugned order and it is set aside. The appeal is allowed. (Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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