Bony Polymers vs Commissioner Of Central Excise

[Arising out of Order-In- Appeal No. 190/BK/GGN/2011 dated 1.06.2012 passed by Commissioner of Central Excise (Appeals), Gurgaon]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Bony Polymers Appellants

Vs.

Commissioner of Central Excise Respondent

Delhi III

Appearance:

Shri K L Handa, Consutlant for the Appellants

Shri A K Dhawan, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 26.02.2015

ORDER NO. FO/ A 50598 /2015-Ex(SM)

Per Ashok Jindal :

The appellant were earlier a 100% EOU unit and subsequently after debonding were converted into a DTA unit. During the period they were functioning as a 100% EOU, they, in addition to duty free inputs, also received duty paid inputs in respect of which they were availing Cenvat credit, which was being utilised by them for payment of duty on their DTA clearances. At the time of conversion into DTA unit, the appellant had Cenvat credit balance of Rs. 3,72,908/- which was also transferred by them. The department is of the view that on their conversion into DTA, the appellant were not eligible for Cenvat credit of Rs. 3,72,908/- in balance at the time of their conversion into DTA. It is on this basis that the Assistant Commissioner vide order-in-original dated 27/4/11 confirmed the Cenvat credit demand of Rs. 3,72,908/- alongwith interest and also imposed penalty. The Commissioner (Appeals) upheld the order of the Assistant Commissioners order vide order-in-appeal dated 30/04/12, against which this appeal alongwith stay application has been filed.

2 Shri K.L. Handa, Consultant, the learned Counsel for the appellant, pleaded that the issue involved in this case is no longer res-integra, as the same stands decided in the appellants favour by judgments of the Tribunal in the cases of Sun Pharmaceuticals Industries Ltd. vs. CCE, Pondichery reported in 2010 (251) E.L.T. 312 (Tri.  Chennai), Micro Inks Ltd. vs. CCE, Daman reported in 2009 (246) E.L.T. 251 (Tri.  Ahmd.) and Technocraft Industries (India) Ltd. vs. CCE, Thane  I reported in 2011 (274) E.L.T. 446 (Tri.  Mumbai), wherein it has been held that a 100% EOU at the time of debonding and conversion into DTA, can utilise the accumulated Cenvat credit which had been taken during its functioning as a 100% EOU. He, therefore, pleaded that the appellant have a strong case in their favour, therefore the demand of duty, interest and penalty be set aside.

3. Heard the parties. Considered the fact that issue is no more res integra in the light of decision of this Tribunal mentioned in para 2 hereinabove. Therefore, I hold that

appellants are entitled to avail Cenvat credit lying unutilized in their Cenvat Credit account at the time of debugging of their DTA. Therefore, impugned order is set aside. Appeal is allowed with consequential relief, if any.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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