9911796707
TMI Blog2022 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... . Petitioner was having two separate units, one for manufacturing the goods for exports without payment of excise duty and one for domestic consumption to the DTA - It can be accepted that both are separate units and separate entities. It is not disputed anywhere or denied that petitioner has not paid Rs.7,31,58,191/- but according to respondent no.2, the EOU was not entitled to discharge the duty payable of DTA clearances from Cenvat credit, but the duty discharge by DTA unit in this case was substantially from Cenvat credit account and only partly from the current account. The stand of respondent no.2 cannot be accepted that even though petitioner has already paid Rs.7,31,58,191/- through the DTA unit, the amount should once again be paid through the EOU unit and petitioner should apply for a refund of the amount paid through the DTA unit. If petitioner is compelled to do that, it would only mean that petitioner has to pay the said amount twice and then claim refund. Abatement on account of applicability of Notification No.23 of 2003 - HELD THAT:- On the first point of suspension, in the final order itself, respondent no.2 admits that the DTA permission granted was not ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff (hereinafter referred to as domestic unit ). The factory was located at Kesnand, Pune. In July, 2002, petitioner set up another unit as 100% Export Oriented Unit for manufacture of the goods, wiring harness (hereinafter referred to as EOU ). The EOU was set up by converting a portion of the existing domestic unit into EOU. Both the units, i.e., the domestic unit and EOU obtained separate Central Excise Registration certificates from the Central Excise department. From July, 2002 to November, 2004, both EOU and domestic units were situated in the same building at Kesnand, Pune. Thereafter, the domestic unit was shifted to another building within the same plot. 4. It is not disputed by respondent that wiring harness manufactured by both the units of petitioner were liable to excise duty. In respect of goods manufactured by the domestic unit, excise duty is levied in terms of Section 3(1) of the Central Excise Act, 1944 (hereinafter referred to as said Act ) at the rates mentioned in the Schedule thereto. It was 16% at that time. The value of goods manufactured and cleared by the domestic unit is determined in terms of Section 4 of the said Act. 5. In respect of goods m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reason for dispute can be bifurcated as under: (a) Amount of Rs.7,31,58,191 : The rate of excise duty payable by the EOU unit varied from 39.2% to 56.832% (depending upon the period) whilst the rate of excise duty payable by the DTA unit was 16%. The excise duty demanded against Petitioner in the SCN was on the premise that the EOU unit was liable to excise duty at the rate of 39.2% to 56.832%. The amount of Rs.7,31,58,191 was the amount of excise duty paid by the DTA unit at the rate of 16%. The only dispute in the present matter is whether the EOU unit is liable to pay duty at the rate of 39.2% 56.83% minus 16%. It is undisputed that only a single event of manufacture occurred for which the duty was demanded. It is case of the Department that goods actually manufactured by the EOU unit had been wrongly shown / declared as manufactures of the DTA unit. Given that the DTA unit has already discharged Central Excise duty of Rs.7,31,58,191, this amount of Rs.7,31,58,191 is liable to be adjusted against the duty demanded against the EOU unit. This is especially so given that there is only single legal entity (i.e. Petitioner-company) who merely possesses separate registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A clearances from Cenvat credit, but the duty discharge by DTA unit in this case was substantially from Cenvat credit account and only partly from the current account. We find it rather difficult to accept this argument because whether it is by way of Cenvat credit or through current account, the fact is that there has been a payment. The only obligation for assessee is to pay the duty on the goods sold. Admittedly, it has been paid. We are unable to agree with the contention of respondent no.2 in the absence of any specific prohibition that payment cannot be made through Cenvat credit for goods manufactured by EOU. Mr. Deshmukh in fairness also agreed to a query posed by the Court that he has not come across any such specific prohibition. Even, the impugned order does not specify any prohibition or the specific provision of prohibition. 10. In the circumstances, we are unable to accept the stand of respondent no.2 that even though petitioner has already paid Rs.7,31,58,191/- through the DTA unit, the amount should once again be paid through the EOU unit and petitioner should apply for a refund of the amount paid through the DTA unit. If petitioner is compelled to do that, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
