2011 (3) TMI 632

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..... t credit is not transferred to the DTA unit, Revenue would have to refund the amount in case to the 100% EOU, if in accordance with law - Decided in favour of the assessee
S/Shri M.V. Ravindran, P. Karthikeyan, JJ. REPRESENTED BY : Shri G. Shivadass, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This stay petition is filed for the waiver of the pre-deposit of the following amounts :- a. Credit - Rs. 1,91,10,910/- b. Interest. c. Penalty - Rs. 19 lakhs u/r 15(1). 2. The confirmation of the above demand has arisen on the ground that the appellant had availed ineligible cenvat credit. It is the finding of the lower authorities that the cenvat credit lying unut .....

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..... of Rule 3 of the Cenvat Credit Rules will apply wherein credit should be allowed. It is his submission that the Board Circular No. 799/32/2004-CX., dated 23-9-2004 would be applicable. He would also submit that the decision of co-ordinate Bench of this Tribunal in the case of Sun Pharmaceuticals Industries Ltd. v. CCE, Pondicherry [2010 (251) E.L.T. 312 (Tri. - Chennai)] and in Hewlett Packard (I) Sales (P) Ltd. v. CC, Bangalore [2007 (211) E.L.T. 263 (Tri. - Bang.) = 2007 (6) S.T.R. 155 (Tribunal)] will apply in this case though it is in respect of DTA turning into EOU and availing cenvat credit. 4. Ld. SDR would submit that in this case, there is no merger or amalgamation as per the Company's Act. It is her submission that both the .....

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..... owed to be transferred to the DTA unit by the jurisdictional Assistant Commissioner by letter dated 7-12-2007. It is also not disputed that the inputs and the capital goods on which credit was availed by the EOU was in fact further utilized by the DTA unit on de-bonding. The case which has been made out by the Revenue on technicalities, inasmuch as that the Cenvat Credit Rules, 2004 has no provisions do so; seems to be the view of the Revenue. It is seen that after 6-9-2004, the EOUs are entitled to avail cenvat credit. The period of dispute involved in this case is December, 2007. After this date, there is no dispute that the 100% EOU is entitled to avail the cenvat credit and if the said credit cannot be utilized, the 100% EOU can claim t .....

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