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TMI Blog2016 (8) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... rer. In the present case in as much as the inputs and capital goods were not removed physically from the factory, the mischief of Rule 3(5) will not be invited. Also the issue is no longer res-integra in as much as identical issue has been considered time and again and decided in favour of the appellants by this Tribunal. Hence, in as much as EOUs are entitled to take as well as utilize Cenvat credit on inputs as well as capital goods, for payment of duty on the DTA clearances, the demand of duty made in the impugned order, if paid, will be available as Cenvat credit to the 100% EOUs. - Decided in favour of appellant - Excise Appeal No. 3003 of 2007 - Final Order No. 52172/2016 - Dated:- 14-6-2016 - Ms. Archana Wadhwa, Member (Judicial) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly on the following points :- (1) Since there was no removal of capital goods when a portion of the appellant s factory was converted into 100% EOU, the provisions of Rule 3 (5) of the Cenvat Credit Rules, 2004 will not be attracted. The CBEC Circular No. 77/99-Cus. dated 18/11/1999 which has been relied upon by the Adjudicating Authority is no longer relevant in as much as Cenvat credit is allowed even under the 100% EOU Scheme ; (2) They have placed reliance among others on the following decisions :- (i) Privi Organics Ltd. vs. CCE, Raigad reported in 2015 (324) E.L.T. 611 (Tri. - Mumbai) ; (ii) Sun Pharmaceuticals Indus. Ltd. vs. CCE, Pondicherry reported in 2010 (251) E.L.T. 312 (Tri. - Chennai) ; (iii) CCE, Belapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows :- 5. We find that this issue has already been decided by this Tribunal in the case of Sandoz Pvt. Ltd. v. CCE - 2011-TIOL-673-CESTAT-MUM. = 2012 (278) E.L.T. 259 (Tri.). The said order of the Tribunal has been upheld by the Hon ble High Court of Bombay as reported in 2012-04-LCX-02-05. We also note that based upon the said judgment this Tribunal in the case of Matrix Laboratories Ltd. v. CCE - 2014-TIOL-2090-CESTAT-MUM. = 2015 (316) E.L.T. 168 (Tri.-Mum.) has also taken similar view. In the said judgment this Tribunal has observed as under : - 5.1 We observe that there is no bar for transfer of credit available in the books of accounts on the date of conversion of a unit in DTA into 100% EOU under Rule 10 of the Cenvat C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g case as when unit got converted in EOU all details of unutilised credit, etc., were made known to the department and revenue after five years cannot allege that there was wilful misstatement or suppression of fact. 7. Under the circumstances, we allow the appeal filed by the appellant both on merits as well as limitation . 5. Similar views have also been expressed by the Tribunal in so many other cases for example Sun Pharmaceuticals Indus. Ltd. vs. CCE, Pondicherry reported in 2010 (251) E.L.T. 312 (Tri. - Chennai). 6. In as much as EOUs are entitled to take as well as utilize Cenvat credit on inputs as well as capital goods, for payment of duty on the DTA clearances, the demand of duty made in the impugned order, if paid, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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