2016 (8) TMI 1062 - AT - Central Excise

Whether on conversion of DTA unit into a 100% EOU, the CENVAT credit lying as balance at the time of conversion can be availed and utilized by the 100% EOU or not - Held that - in view of the various judgments which squarely covers the case of the appellant and this Tribunal has consistently held that the appellant is entitled to transfer the unutilized CENVAT credit on conversion from DTA to 100% EOU. therefore, in view of the settled position of law, the impugned order is not sustainable in law. - Decided in favour of appellant with consequential relief

Summary

Issues:
Whether the CENVAT credit balance at the time of conversion from a Domestic Tariff Area (DTA) unit to a 100% Export Oriented Unit (EOU) can be availed and utilized by the EOU.

Analysis:

1. Issue of CENVAT Credit Transfer on Conversion:
The primary issue in this case revolves around the transfer and utilization of CENVAT credit balance from a DTA unit to a 100% EOU upon conversion. The appellant, engaged in manufacturing parts for ATM machines, converted their DTA unit into an EOU, carrying forward a CENVAT credit balance of ?44,80,274. The main contention was whether the EOU is entitled to utilize this unutilized credit post-conversion. The appellant argued that various judicial decisions, including those of the Hon'ble Tribunal and High Court, support the EOU's right to avail and utilize the CENVAT credit post-conversion. Notably, the case of Sandoz Pvt. Ltd. vs. CCE, Belapur was cited, where it was held that a 100% EOU can avail the CENVAT credit available at the time of conversion. The appellant further emphasized that there is no provision under the CENVAT Credit Rules that mandates the lapsing of such credit upon conversion.

2. Judicial Precedents Supporting CENVAT Credit Transfer:
The appellant relied on several judicial precedents to support their argument. Cases such as Sun Pharmaceuticals Indus. Ltd. vs. CCE, Pondicherry, Privi Organics Ltd. vs. CCE, Raigad, and others were cited to demonstrate that previous decisions have upheld the right of EOUs to transfer and utilize unutilized CENVAT credit upon conversion from DTA units. These cases highlighted that there is no prohibition under the rules for EOUs to avail such credits, and any unutilized balance should not lapse upon conversion.

3. Interpretation of Circulars and Transitional Provisions:
The Tribunal's analysis delved into the interpretation of relevant circulars and transitional provisions. Circular No.77/99-Cus. was referenced to address the issue of lapsing CENVAT credit upon conversion. However, it was argued that this circular, issued during the existence of previous rules, should not be applicable post-rescinding of those rules. The Tribunal emphasized that the absence of specific provisions barring EOUs from availing CENVAT credit indicates that such credits should not be forfeited upon conversion.

4. Final Decision and Conclusion:
After considering the arguments and precedents, the Tribunal concluded that the appellant, as a 100% EOU, is entitled to transfer and utilize the unutilized CENVAT credit from the DTA unit upon conversion. The Tribunal highlighted the consistent legal position that EOUs should not be denied the right to avail such credits post-conversion. Consequently, the impugned order rejecting the appellant's appeal was set aside, and the appeal was allowed with consequential relief, if any. This decision reaffirmed the established legal stance on the transfer of CENVAT credit from DTA units to EOUs, providing clarity and relief to the appellant in this case.