ORDER
Shri S.S. Sekhon, Member (Judicial)
1. As per order dtd. 10/01/2003, the appellants were directed to make a pre-deposit of Rs. 15 lakhs in cash by 28/02/2003 and Bank Guarantee of equivalent amount. The appellants furnished a zerox copy of the Bank Guarantee valid upto 25/02/2004 for the sum of Rs. 15 Lakhs and as regards the cash deposit, they have made a debit entry in the CENVAT credit amount as per Sr. No. 414 dtd. 08/02/2003, the matter was adjourned by the Revenue to obtain a report from concerned Commissioner with regards to the Bank Guarantee and deposit whether the same could be considered cash deposit.
2. The matter come up on 13/05/2003 when for the appellants advocate Shri Prakash Shah were heard and Jt. C.D.R. Shri M.K. Gupta appeared for Revenue. The submissions made were considered in light of whether this compliance as made would be accepted or and an application of modification could be granted on this understanding of the compliance and thereafter the compliance accepted. It is found-
(a) The decision of U.O.I. v. Vikrant Tyres Ltd. – 1999 (35) R.L.T. 427 (Kar.) relied upon by the learned advocate is wherein the Hon’ble High Court held that payment of amount by a debit entry in RG 23A Part II is a compliance by payment in cash and therefore they dismissed the contempt application. RG 23A Part II was an account maintained under the erstwhile modvat scheme now replaced by CENVAT Scheme.
(b) The Tribunal held in the case of C.C.E. Hyderabad v. Siri Sri Plastics (P) Ltd. (2002 (51) R.L.T. 1064). Debits for dues which accrued, when appellant was not under MODVAT Scheme were permissible.
This theme runs through in a catena of decision, 1996 (16) RLT 903 (CEGAT)=1997 (89) ELT 131, 1996 (16) RLT 901, (CEGAT)=1997 (89) ELT 192, 1996 (16) LT 867 (CEGAT)-1997 (89) ELT 557, 1994 (2) RLT 112=1994 (71) ELT 608, 1996 (12) RLT 36 (CEGAT)=1998 (102) ELT 663, 1998 (102) ELT 687, 1998 (103) ELT 58.
The case of Swil Limited – 1999 (31) R.L.T. 848 and Birla Yamaha Ltd. – 1996 (12) R.L.T. 626 would also lead to the proposition that the debit in the credit account register would amount to payment in cash. In this view of the law the debit made in the present case CENVAT register can not be questioned as to payments in cash.
(c) The contention of Revenue that the appellants were an EOU unit and were not therefore, entitled to any credit during the period, the present demands came to be determined on them. That they subsequently have obtained a registration as Domestic Tariff Area (DTA) unit. Therefore they would not be eligible for the benefit of decisions relied upon by the learned advocate has been considered. Since the corporate identity of the appellants remains the same. Even if they have obtained registration for DTA afresh that would not make the appellants a new unit.
(d) A DTA unit requires a registration while 100% EOU was exempt from this requirement, merely because they obtain a fresh registration which was required of them they having become a DTA unit, will not cause them to be deprived of utilization of the credit in their registers which these decisions permit.
(e) Considering the alternative submissions that this payment should be accepted as a modification to the original Section 35F order and in view of Karnataka High Court decision in Vikrant Tyres Ltd. – 1999 (35) R.L.T. 427 (Kar.). There is no contempt in their approaching the Tribunal after making such an entry, we find force in this argument and would consider therefore acceptance of the credit as made alongwith the bond executed to be due compliance of the 35F order.
3. Consequently we direct that the matter be listed in its normal course, since no application for expeditiously hearing has been made in writing or & orally before us.
(Pronounced in Court)