2014 (6) TMI 821 - AT - Central Excise

CENVAT Credit - nature of duty paid by the 100% EOU - Revenue has taken a view that entire amount should not have been taken as credit and credit should have been limited to the amount attributable to excise duty(CVD) portion of the total duty paid by 100% EOU - Held that - According to Section 3 of Central Excise Act 1944, the duty payable by a 100% EOU is excise duty only and the quantum is required to be worked out based on the customs duty leviable on the goods. When the statute itself provides that what is being paid by a 100% EOU is excise duty, the question of denial of benefit of Notification or the CENVAT Credit Rules does not arise. In this view of the matter, we consider that the appellant has made out prima facie case for complete waiver. Accordingly, there shall be complete waiver and stay against recovery of the dues during the pendency of the appeal - Stay granted.

Summary

Issues Involved:
Delay in filing appeal - Condonation of delay
CENVAT credit - Duty paid by 100% EOU to DTA unit

Delay in filing appeal - Condonation of delay:
The appellants sought condonation of an 83-day delay in filing the appeal due to the misunderstanding that two Orders-in-Original should have been covered by separate appeals. The Chartered Accountant representing the appellants argued that the second appeal filed later could be considered a supplementary appeal. The Tribunal allowed the application for condonation of delay based on this reasoning.

CENVAT credit - Duty paid by 100% EOU to DTA unit:
The main issue revolved around the CENVAT credit taken by the appellant for duty paid by a 100% Export Oriented Unit (EOU) supplied to a Domestic Tariff Area (DTA) unit. The Revenue contended that the credit should be limited to the excise duty (CVD) portion of the total duty paid by the 100% EOU. The appellant argued that since the duty paid by the 100% EOU is essentially excise duty, the credit taken was appropriate. The Tribunal examined Section 3 of the Central Excise Act 1944, which specifies that the duty payable by a 100% EOU is considered excise duty, calculated based on the customs duty leviable on the goods. The Tribunal agreed with the appellant's interpretation that the duty paid by the 100% EOU should be treated as excise duty, and therefore, the denial of benefits under Notification or the CENVAT Credit Rules was unwarranted. Consequently, the Tribunal granted a complete waiver and stay against the recovery of dues during the appeal's pendency.

This judgment highlights the importance of understanding the nature of duties paid by different entities in the context of claiming CENVAT credit and the significance of statutory provisions in determining the applicability of such credits.