2012 (7) TMI 782 - AT - Central Excise

Cenvat credit - appellants were having a D.T.A. manufacturing unit - availed modvat credit on the capital goods installed in the unit - no such capital goods were found therein - capital goods were indeed found in the newly set up 100% E.O.U Held that - From this letter of approval, it is noticed that it permits the conversion of D.T.A. unit into an 100% EOU - It is not clear from the case records, whether there was any correspondence between the appellants and the Ministry of Commerce & Industry - whether the Ministry of Commerce & Industry has permitted the appellants to convert the existing D.T.A. unit into an 100% E.O.U.unit - case is remanded back to the Commissioner for de novo adjudication after verifying the facts with the Ministry of Commerce & Industry about the conversion of D.T.A. unit into an 100% E.O.U - appeals are allowed by way of remand.

Summary

Issues:
1. Availment of Cenvat credit on capital goods for 100% EOU.
2. Disallowance of Cenvat credit and demand of Central Excise duty.
3. Interpretation of Board's Circular No.77/99.
4. Conversion of D.T.A. unit into 100% EOU.
5. Appeal against the original adjudicating authority's findings.

Issue 1: Availment of Cenvat credit on capital goods for 100% EOU
The appellants, engaged in manufacturing optic fibers and cables, set up a 100% Export Oriented Unit (EOU) at a new plot. The dispute arose when capital goods procured by the D.T.A. unit were transferred to the 100% EOU without reversing the Cenvat credit availed. The department alleged inadmissible credit availed by the appellants, leading to a demand for Central Excise duty. The appellants contended that no duty was due as the goods remained within the EOU premises, and the demand was barred by limitation. They voluntarily paid duty on goods availed after 14.3.2001.

Issue 2: Disallowance of Cenvat credit and demand of Central Excise duty
The Revenue contended that the D.T.A. unit and the 100% EOU were distinct units, supported by the application submitted for setting up a new unit at the EOU plot. The original adjudicating authority upheld the demand for Central Excise duty, rejecting the appellants' argument that the D.T.A. unit was converted into an EOU. However, the Tribunal noted discrepancies in the Ministry's approval letter, indicating the conversion of the existing D.T.A. unit into a 100% EOU at the E-3 plot. Due to unclear correspondence and lack of confirmation, the case was remanded for further adjudication.

Issue 3: Interpretation of Board's Circular No.77/99
The appellants relied on Board's Circular No.77/99, which exempts duty payment if Modvat credit was utilized before conversion into an EOU. The Tribunal found that the circular applied if the D.T.A. unit was converted into an EOU, as indicated in the Ministry's approval letter. The Revenue argued against the conversion, emphasizing the application for a new unit. The case was remanded to verify the conversion status for a fair adjudication.

Issue 4: Conversion of D.T.A. unit into 100% EOU
The critical point of contention was whether the D.T.A. unit was converted into a 100% EOU, as claimed by the appellants based on the Ministry's approval letter. The Revenue disputed this conversion, citing the application for a new unit at the EOU plot. The Tribunal highlighted the importance of clarifying the conversion status for accurate decision-making.

Issue 5: Appeal against the original adjudicating authority's findings
After analyzing the facts and arguments presented, the Tribunal found discrepancies in the Ministry's approval letter regarding the conversion of the D.T.A. unit into a 100% EOU. As the case's outcome hinged on this crucial aspect, the Tribunal remanded the case for a fresh adjudication to verify the conversion status with the Ministry of Commerce & Industry. The appeals were allowed by way of remand for further examination and clarification.

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