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2016 (12) TMI 534 - AT - Central ExciseConversion of a portion of factory to 100% EOU - Extended period of limitation - The respondent cleared capital goods, on which the cenvat credit was availed to the said 100% EOU without payment of duty or without reversal of Cenvat Credit. - Notification No. 1/95 dt. 4.1.1995 -Held that - it is observed that the Ld. Commissioner (Appeals) allowed the appeal of the respondent on the ground that 100% EOU is eligible for the cenvat credit if all the cenvat credit is reversed by the respondent. I find that this finding of the Ld. Commissioner is also based on the judgment cited by the Ld. Counsel in the case of Sandoz Pvt. Ltd., 2013 (10) TMI 145 - BOMBAY HIGH COURT . The Ld. Commissioner also held that the demand is time barred as the show cause notice was issued beyond one year of the removal of the goods. I find that the Commissioner (Appeals) observed that the goods were cleared under CT-3 which was issued by the department. In the present case, the 100% EOU is located within the same premises and falling under the same jurisdiction of the Central Excise, Pune. Therefore the authority issuing the CT-3 certificate must be aware about the 100% EOU as well as the respondent factory. In view of this fact there appears to be no suppression of fact on the part of the appellant, therefore, the show cause notice issued beyond the stipulation period is time barred. Moreover, the judgment in the case of Behr India Ltd. Vs. Commissioner of C. Ex., Pune-II 2016 (6) TMI 827 - CESTAT MUMBAI having the similar facts and circumstances, applying to the fact of the present case. Appeal dismissed - decided against Revenue.
Issues Involved:
1. Availing cenvat credit without payment of duty by converting a portion of the factory into 100% EOU. 2. Demand of cenvat credit and penalty under Section 11A and Section 11AC. 3. Appeal filed before the Commissioner (Appeals) and grounds for allowing the appeal. 4. Interpretation of the Larger Bench decision and Hon'ble Supreme Court judgment. 5. Dispute over physical removal of capital goods and reversal of cenvat credit. 6. Application of revenue neutrality principle and time bar for issuing show cause notice. 7. Ownership of the machines and suppression of facts. 8. Upholding the impugned order and dismissing the Revenue's appeal. Analysis: 1. The case involved the respondent converting a portion of the factory into a 100% EOU and clearing capital goods without payment of duty or reversal of cenvat credit. The lower authority confirmed the demand of cenvat credit and imposed penalties, which led to an appeal before the Commissioner (Appeals). 2. The Revenue argued that removal of inputs without reversal of credit to 100% EOU is impermissible, citing the Larger Bench decision and a Supreme Court judgment. The demand was based on the goods not being cleared under a specific notification applicable only to manufactured goods. 3. The Commissioner (Appeals) allowed the appeal, stating that duty payable by the respondent could be availed as cenvat credit by the 100% EOU. The appeal was also allowed on the grounds of time bar due to goods being cleared under CT-3, known to the department. 4. The interpretation of the Larger Bench decision and the Supreme Court judgment played a significant role in the arguments presented by both sides regarding the legality of availing cenvat credit without payment of duty. 5. The dispute centered around the physical removal of capital goods and the necessity of reversing cenvat credit. The respondent argued that since the 100% EOU and DTA belonged to the same company and were located adjacent to each other, no reversal of credit was required. 6. The principle of revenue neutrality was invoked, along with the argument that the show cause notice was time-barred due to the department's awareness of the goods being cleared under CT-3. The ownership of the machines and suppression of facts were also discussed. 7. The impugned order was upheld based on the finding that there was no suppression of facts by the appellant, and the demand of duty was not sustainable. The time bar for the show cause notice and the application of revenue neutrality principles were crucial in dismissing the Revenue's appeal. 8. Ultimately, the judgment upheld the impugned order, citing various judgments and the lack of infirmity in the decision. The Revenue's appeal was dismissed, concluding the legal proceedings.
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