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TMI Blog2016 (8) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... facture 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 on 25.8.2010 appellant converted their DTA unit into a 100% EOU vide letter of permission dated 16.2.2010 issued by the Development Commissioner of CSEZ. During the period prior to conversion of the DTA unit as an EOU, appellant was undertaking the physical and deemed exports in addition to DTA clearances. Consequently, appellant had accumulated CENVAT credit balance to the tune of Rs. 44,80,274/- and on conversion from DTA unit to EOU, appellant carried forward/transferred the unutilized CENVAT credit balance from DT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus 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 decisions: * Sun Pharmaceuticals Indus. Ltd. vs. CCE, Pondicherry: 2010 (251) E.L.T. 312 (Tri.-Chennai) * Privi Organics Ltd. vs. CCE, Raigad: 2015 (324) E.L.T. 611 (Tri.-Mumbai) * Strides Arcolab Ltd. vs. CCE, Bangalore: 2014 (302) E.L.T. 577 (Tri.-Bang.) * CCE, Pune vs. Sandvik Asia Ltd.: [2016] 70 Taxmann.com 316 (Mumbai-CESTAT) * Heranba Industries Ltd. vs. CCE & ST, Damn: 2016 (5) TMI 1121-CESTAT-Ahmedabad * CCE, Vapi vs. Raveshia Colours Pvt. Ltd.: 2013 (292) E.L.T. 96 (Tri.-Ahmd.) * Behr India Ltd. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conversion into an EOU/EHTP/STP but no concession in duties and taxes would be available under the scheme for plant, machinery and equipment already installed. In this connection, instances have come to the notice of the Board that such units on their conversion into EOUs have been asked to reverse the Modvat Credit already availed of, on plant and machinery procured by them prior to their conversion into EOUs. The matter has been examined. It is clarified that if the DTA unit has availed of the modvat credit on plant, machinery and equipment and also ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, the duty should be paid by a 100% EOU only through account current. Account current refers to PLA. In view of this position, the appellant cannot pay duty through Cenvat Credit. In that case, the appellant will not be in a position to utilize the CENVAT credit at all and it does not make any sense to allow him to take credit. The inconsistency between Cenvat Rules and Central Excise Rules can be removed only by the legislature. As such in view of the Rule 17 of the Central Excise Rules, the appellant cannot avail the credit taken by him for payment of duty in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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