2018 (4) TMI 590 - AT - Central Excise

100% EOU - carry forward of credit - whether the unutilized CENVAT credit lying in balance in the books of accounts in the case of respondent EOU can be carried forward to the respondent unit on its debonding to be a DTA? - Held that - There is no dispute as to the fact that the respondent is functioning under a Central Excise registration when they were an EOU and the same registration number was continued as DTA unit - reliance placed in the case of Tecumseh Products India P. Ltd. Versus C.C.,C.E. & S.T., Hyderabad-IV 2015 (9) TMI 1487 - CESTAT BANGALORE , where it was held that there being no law prohibiting carrying forward unutilized CENVAT credit it cannot be held against the assessee - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Transfer of unutilized CENVAT credit from EOU to DTA unit upon debonding.

Analysis:
The appeal was filed by the Revenue against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals). The respondent, a 100% EOU, had been availing CENVAT credit of service tax and Central Excise duty until 18/11/2011, when they opted out of EOU status and continued operations as a DTA unit under the same Central Excise registration. The debonding of the EOU unit on 18/11/2011 led to a dispute regarding the unutilized CENVAT credit of duty paid on inputs and capital goods. The adjudicating authority confirmed the demand of unutilized credit, which was challenged in an appeal before the first appellate authority. The first appellate authority, relying on various Tribunal judgments, set aside the order-in-original.

The main contention revolved around the transfer of unutilized CENVAT credit from the EOU to the DTA unit upon debonding. The Revenue argued that Rule 10 did not apply for such a transfer, citing a specific case where it was mentioned that an EOU, post-debonding, cannot carry forward unutilized credit. However, the respondent relied on a Division Bench judgment which held that there was no prohibition on carrying forward unutilized CENVAT credit. The Tribunal found that the respondent's eligibility to avail CENVAT credit was not in question, and the only issue was the transfer of unutilized credit to the DTA unit.

The Tribunal, in line with the Division Bench judgment, held that the unutilized CENVAT credit could indeed be transferred to the DTA unit upon debonding. It was noted that there was no logical basis for the Revenue's contention that Rule 10 prohibited such a transfer. The Tribunal upheld the impugned order, stating that it was correct, well-reasoned, and did not require any interference. Consequently, the appeal was rejected, and the cross-objection filed by the respondent was also disposed of in support of the order-in-appeal.