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TMI Blog2019 (2) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... 50135-50142/2019 - Dated:- 21-1-2019 - Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri Mehul Jivani, C.A. - for the appellant Shri S.K. Bansal, D.R. - for the respondent ORDER Per Anil Choudhary: The facts are common in all these appeals, are as follows; 2. The appellant is an EOU, holding Registration No. AABCP0464BXMOO1 and is engaged in manufacturing of various kind of chemical products under the brand Fluro falling under Chapter 29 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). The appellant is also availing of the facility of Cenvat Credit under Cenvat Credit Rules, 2004. The appellant availed Cenvat credit of tax paid on inputs, capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that in view of the specific withdrawal of the refund claims by the noticee, there is no merit left in the case and the claim case to the treated as close. Further, as regard suo moto availment of CENVAT credit, which was reversed by them, earlier under Rule 5 of CENVAT Credit Rules, 2004, it is observed that since the issue relating to availment of Cenvat Credit itself is under dispute and show cause notice is pending adjudication and therefore in light of the same that the matter is subjudice taking any frontal action on the said credit would amount to contempt of lawful proceedings and will be usurping power by the Noticee. In such circumstances, the recording of credit balances in the GST account will be grossly illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted to them thus indicating that the 100% EOU is not entitled to the Cenvat credit. 4. We find that an identical issue was considered by the Tribunal in the case of M/s M/s Teva API India Pvt. Limited Vs. CCG ST E, Ujjain 2018 (4) TMI 824-CESTAT New Delhi dealing with identical objections raised by the Revenue. The Tribunal held that once the duty has been paid by the manufacturer and the goods have been received by 100% EOU, he is entitled to the credit of the same. The DGFT policy circular relied by the Revenue has got no connection with the availment of credit and cannot be considered to be a bar in availing the same. As such, by relying upon various precedent decisions, the Tribunal held in favour of the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non-payment of tax on the part of the assessee s head office, which was ultimately paid by taking the shelter under the said scheme. Inasmuch as Cenvat Credit Rules, 2004 prohibits allowing of credit in case the tax stands paid under suppression or misstatement on the part of the tax payer. The facts discussed above clearly leads to the conclusion that tax was not being paid during the relevant period and as such it can be concluded that there was suppression or mis-statement on the part of the assessee, thus leading to non-availability of credit to them, 7. The reliance by the ld. Advocate on the Board s Circular No. 170/5/2013-ST dated 8.8.2013 does not advance their case inasmuch as the said circular while clarifying as to whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. As such, we hold that the said decision is not applicable. Similarly, we hold that another decision of the Tribunal in the case of CC ST, Ahmedabad Vs. M/s Oxygen Bio Research Ltd. 2018 (9) TMI 175 CESTAT Ahmedabad, the basic issue of admissibility of Cenvat credit was not addressed inasmuch as in that case, the issue related to refund of the credit in terms of the provisions of Notification No. 12/2013-ST by SEZ unit. As such, the said decision is also not applicable. 9. In view of the foregoing discussion, we hold that the appellant is entitled to the credit of ₹ 2,78,19,091/- and the demand along with penalty is set aside. However we uphold the denial of credit of ₹ 21,68,285/-. As regards penalty in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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