9911796707
TMI Blog2016 (8) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. 20657 / 2016 - Dated:- 25-8-2016 - Shri S. S. Garg, Judicial Member Mr. Cherian PUnnoose, Advocate For the Appellant Dr. K. Ezhilmathi, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the order passed by the Commissioner (A) dated 27.12.2012 vide which the appeal filed by the appellant was rejected and the Order-in-Original was upheld. Briefly the facts of the present case are that the appellant is a 100% Export Oriented Unit (EOU) engaged in the manufacture of parts and accessories for ATM machine classifiable under Chapter Heading 84 of Central Excise Tariff Act, 1984. Earlier the appellant had obtained Central Excise registration as a Domestic Tariff Area (DTA) unit and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of conversion from DTA unit to 100% EOU. The said decision of the Hon bleTribunal was upheld by the Hon bleHigh Court of Bombay in the case of CCE, Belapur vs. Sandoz Pvt. Ltd. as reported in 2013 (291) E.L.T. 325 (Bom.). Learned counsel further submitted that there is no provision under the CENVAT Credit Rules, which provides lapsing of CENVAT Credit on conversion of DTA unit to 100% EOU. He further submitted that as per new scheme even 100% EOU can procure the goods on payment of duty and avail the CENVAT credit. Thus the 100% EOU are not debarred from availing the CENVAT credit and under any circumstances they cannot be denied the unutilized CENVAT credit. In support of his submission, the learned counsel relied upon the following dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 57A to Rule 57U of CER-44 inapplicable to an EOU. CER-44 have been rescinded. There is also no corresponding rule/provision in CCR-01 or CCR-02. CER-01 and CER-02 contain transitional provisions to the effect that any circulars, instructions, orders, trading notices or other orders issued under the CER-44 superseded by CER-01, or such orders etc., issued under CER-01 superseded by CER-02, by the Board, and in force on the date the erstwhile rules were rescinded shall, to the extent they are relevant and consistent with the new set of rules shall be deemed to be valid. CBEC Circular No.77/99-Cus. dated 18.11.99 is reproduced below:- Paragraph 9.28 of the EXIM Policy, 1997-2002 provides that existing DTA units may also apply for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the rival contentions. The appellants have informed their intention of taking Cenvat Credit. The Department acknowledged the intimation sent by the appellants. In these circumstances, the appellants started taking credit. Therefore, there is no contumacious conduct on the part of the appellants warranting imposition of any penalty. Therefore the penalties imposed on the appellants and on Shri P. Ravi, General Manager are set aside. As regards the merits of the case, we find that there is no rule corresponding to the erstwhile Rule 100H of the Central Excise Rules, 1944. The interpretation that there is no prohibition for 100% E.O.U to take Cenvat Credit appears to be correct. However, in view of Rule 17 of the Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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