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TMI Blog2012 (7) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellants are carrying out the manufacturing activity of optic fiber cables at plot No.E-1 and optic fibers at plot No.E-2 both located at MIDC, Waluj, Aurangabad. Optical fibers manufactured by them are captively used in the manufacture of optical fiber cables. Adjacent to plot No.E-1 and E-2. Plot No.E-3 MIDC, Waluj, Aurangabad was also in the name of the appellants where no activity was carried out by them. The said plot was vacant plot without any construction on it. The appellants had applied to the Board of Approval, Department of Industrial Policy and Promotion, Ministry of Industry, New Delhi for setting up an 100% Export Oriented Unit at plot located at E-3. The appellants, after getting the permission to form an 100% EOU st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the appellants in their D T A Unit. It was felt by the department that the appellants have availed inadmissible credit in the year 2000-2001, 2001-2002 in respect of the capital goods received by them before 14.3.2001 and after 14.3.2001. The total Cenvat credit accordingly availed by them was to the tune of Rs. 1,53,87,437/-. The appellants have voluntarily paid Central Excise duty amounting to Rs. 89,55,635/- on account of wrong availment of Cenvat credit in respect of the capital goods received after 14.3.2001 and also 50% of the Cenvat credit availed in the financial year 2001-02 in respect of the capital goods which were received in their factory before 14.3.2001 i.e. before formation of 100% EOU. A show-cause notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required to be demanded. He submitted that the appellants case is squarely covered under the Board s Circular. In the appellants case, he submitted that this is an accepted position that capital goods in question were received in plot E-3 and those machines did not move out of the said plot and this is an admitted fact that with effect from 14.3.2001 it was clearly an 100% EOU and Board s Circular is clearly applicable. He further contended that the demand of duty is also barred by limitation inasmuch as there was no intention on the part of the appellants to evade the duty so as to attract invocation of the proviso to Sec.11A of the Central Excise Act. He also argued that the entire demand of duty is revenue neutral inasmuch as whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted into an 100% EOU. He, therefore, submitted that the appeals filed by the appellants are to be dismissed. 8. After hearing both sides and perusing the case records, we find that the appellants were having a D.T.A. manufacturing unit at Plot E-1 and E-2 and had availed modvat credit on the capital goods installed in the unit located at that site. On the day of search by the Officers of DGCEI no such capital goods were found therein and these capital goods were indeed found in the newly set up 100% E.O.U at plot E-3. On the capital goods which were procured prior to 14.3.2001, credit was taken by the D.T.A. unit and on the capital goods which were received after 14.3.2001 credit was also taken by the D.T.A. unit though the capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given a finding that D.T.A. unit was not converted into an 100% EOU and therefore, the Board s Circular No.77/99 is not applicable in the present case. He held that the permission was sought for and was given for unit at Plot E-3 where there was no activity of manufacture as a D.T.A. plant and he rejected the contention of the applicants about the conversion of D.T.A. unit into an 100% EOU . On going through the permission given by the Ministry of Commerce & industry vide letter dated 27.2.2001, it is found that the Ministry of Commerce & Industry has referred to the application of the appellants registered under SIA No.EDB/6/2001 dated 31.01.2001 and it states as under:- With reference to the above mentioned application, Govt. is pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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