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TMI Blog2012 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... mestic clearances by them are payment of duty. Therefore, the plea of revenue neutrality cannot be accepted unconditionally - DTA unit directed to reverse the CENVAT credit taken by them on the capital goods removed as such or to pay equivalent amount in cash - C/2302/2010 and E/720/2011 - 516/2012 - Dated:- 22-3-2012 - S/Shri P.G. Chacko, M. Veeraiyan, JJ. REPRESENTED BY : Shri Pramod N. Kathavi, Advocate, for the Appellant. Shri M.M. Ravi Rajendran, Deputy Commissioner (AR), for the Respondent. [Order per : M. Veeraiyan, Member (T)]. The miscellaneous application is seeking modification of Stay Order No. 844 dated 19-9-2011 in Stay Application No. 1390/2010 in Appeal No. 2302/2010. The Stay Petition No. 459/2011 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gust 2008 from the DTA unit to EO unit. The capital goods were used in the manufacture of PCB assemblies and the E.O. unit exported finished goods worth Rs. 4.41 crores. (d) The department subsequently felt that the capital goods imported by DTA unit under concessional rate of duty should have been used only in the DTA unit and the removal to EO unit was not legal and accordingly the capital goods which were in EO unit were seized in 22-6-2009; the seized goods were provisionally released on execution of bond with bank guarantee for a sum of Rs. 28,96,982/-. (e) Treating the transfer from DTA unit to EO unit as diversion in violation of conditions of Notification No. 25/2002, the Commissioner vide Order-in-Original No. 12/2010-Cus-Commr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out reversing the credit and proposing imposition of penalties. The original authority confirmed the demand of 36,48,700/- from the DTA unit along with interest and imposed equal amount of penalty on the DTA unit. The DTA unit filed appeal before the Commissioner (Appeals) who vide Order No. 51/2010 (H-III)-(C.E.), dated 29-11-2010; upheld the demand of duty and interest but set aside the penalty in toto. The DTA unit has filed the Appeal No. E/720/2011 against this order and Stay Petition E/St/459/2011 seeking waiver of pre-deposit of the dues as per the impugned order. 3.1 Learned advocate for the appellant/applicant draws out attention to the submission in the Misc. application to the effect that - the counsel for the applicant at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of pre-deposit as per the impugned order. 5.1 We have carefully considered the submissions from both sides and perused the records. 5.2 The Stay Order dated 19-9-2011 in Stay Application No. 1390/2010 was issued in the absence of disclosure of relevant facts as conceded by the learned counsel for the appellant and the condition for reversing the CENVAT credit was imposed in the said Stay Order arising out of Commissioner s (Appeals) order (in Appeal No. C/2302/2010) is now to be dealt with in the Stay Petition the said condition in the Stay Order dated 19-9-2011 deserves to be deleted. In view of the above para 6 of stay order dated 19-9-2011 shall be read as follows : Taking the entire facts and circumstances of the case, we de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing E.O. unit is eligible for the credit depends upon the conditions to be fulfilled at their end. It suffices to note that the E.O. unit though belonging to the same legal entity operates under different provisions on tenability and benefits. Whether the credit taken by them on capital goods could be utilised by them depends upon whether there are any domestic clearances by them are payment of duty. Therefore, the plea of revenue neutrality cannot be accepted unconditionally. 6.5 In view of the above, we direct the DTA unit to reverse the CENVAT credit of Rs. 28,96,982/- taken by them on the capital goods removed as such or to pay equivalent amount in cash. The reversal/deposit shall be made within six weeks from the date of receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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