2012 (12) TMI 147 - AT - Central Excise

Cenvat credit - Import of capital goods availing the benefit of Notification No. 25/2002-Cus., by paying concessional rate of duty importer has two units capital goods transferred from DTA unit to 100% EOU as such Held that - DTA unit having taken the credit on the capital goods, are required to reverse the credit in terms of Rule 3 (5) of CENVAT Credit Rules - E.O. unit though belonging to the same legal entity operates under different provisions on tenability and benefits. Whether the credit taken by them on capital goods could be utilised by them depends upon whether there are any domestic clearances by them are payment of duty. Therefore, the plea of revenue neutrality cannot be accepted unconditionally - DTA unit directed to reverse the CENVAT credit taken by them on the capital goods removed as such or to pay equivalent amount in cash

Summary

Issues Involved:
1. Modification of Stay Order related to import of capital goods by DTA unit and transfer to 100% EOU.
2. Requirement of reversing CENVAT credit on capital goods transferred from DTA unit to EO unit.
3. Applicability of Rule 3(5) of CENVAT Credit Rules in inter-unit transfer of goods.
4. Eligibility of EO unit for CENVAT credit on capital goods received from DTA unit.

Analysis:
1. The judgment dealt with a miscellaneous application seeking modification of Stay Order related to the import of capital goods by a DTA unit and their transfer to a 100% EOU. The facts and issues in both cases were closely interlinked, leading to a common order by the Tribunal.

2. The DTA unit imported capital goods under concessional duty, availed CENVAT credit, and later transferred the goods to the EO unit. The Commissioner ordered confiscation of goods seized from the EO unit, demanded differential customs duty, and imposed penalties. The Tribunal initially waived pre-deposit subject to reversing CENVAT credit taken by the DTA unit or equivalent cash payment.

3. The Tribunal considered the requirement of reversing CENVAT credit on capital goods transferred from the DTA unit to the EO unit. The DTA unit argued that since both units were part of the same legal entity, the transfer was revenue-neutral. However, the Tribunal held that Rule 3(5) of CENVAT Credit Rules mandates the reversal of credit when goods are removed as such, irrespective of inter-unit transfers.

4. The judgment discussed the eligibility of the EO unit for CENVAT credit on capital goods received from the DTA unit. The Tribunal clarified that the EO unit's eligibility for credit depended on fulfilling conditions at their end, and the plea of revenue neutrality was not accepted unconditionally. The DTA unit was directed to reverse the CENVAT credit taken on the transferred goods or pay an equivalent amount in cash within a specified timeline.

5. Ultimately, the Tribunal allowed the miscellaneous application, modified the Stay Order, and directed the DTA unit to comply with the reversal or payment of CENVAT credit. The waiver of the balance of dues was subject to this compliance, with a stay on recovery pending the appeal's disposal.

This detailed analysis covers the key issues addressed in the judgment, providing a comprehensive understanding of the legal complexities involved in the case.