2008 (7) TMI 804 - AT - Central Excise

Summary

Issues:
1. Interpretation of Notification No. 1/95-CE, dated 4-1-1995 regarding duty-free procurement of inputs for 100% Export-Oriented Units (EOUs).
2. Applicability of MODVAT credit on inputs removed to 100% EOUs without payment of duty.
3. Conflict between different Tribunal benches on the issue.

Issue 1: Interpretation of Notification No. 1/95-CE, dated 4-1-1995
The dispute revolved around whether a manufacturer, availing MODVAT credit on inputs, could clear these inputs to 100% EOUs without payment of duty under Notification No. 1/95-CE. The Tribunal held that the benefit of duty-free procurement under the Notification was not available if the EOUs did not directly procure goods from the factory of manufacture but obtained them from a party who had availed MODVAT credit. The Tribunal emphasized that the condition in the Notification requiring direct procurement from the factory of manufacture was not met in such cases, making the duty payment necessary.

Issue 2: Applicability of MODVAT credit on inputs
The Tribunal considered conflicting views on whether MODVAT credit could be denied to a Domestic Tariff Area (DTA) unit for inputs removed to a 100% EOU without duty payment. While one bench held in favor of denying the credit, another bench allowed the credit in such cases. The Tribunal highlighted the Board's circular clarifying that MODVAT credit on inputs removed for export under bond could be utilized without reversal. However, the Tribunal noted that this clarification did not necessarily extend to cases where inputs were removed to a 100% EOU without duty payment.

Issue 3: Conflict between Tribunal benches
The Tribunal acknowledged conflicting decisions by different benches on the same issue. While one bench supported the Revenue's stance, another bench ruled against it. Due to these conflicting views, the Tribunal decided to refer the matter to a Larger Bench for a comprehensive decision. The Larger Bench was tasked with determining whether, during the relevant period, manufacturers availing MODVAT credit were entitled to clear inputs to 100% EOUs without reversing the credit or paying an equivalent duty amount under Notification No. 1/95-CE.

In conclusion, the judgment delved into the complexities of interpreting Notification No. 1/95-CE, the application of MODVAT credit on inputs cleared to EOUs, and the need for a Larger Bench to resolve conflicting views within the Tribunal.