TMI Blog2023 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... avourable decision from the first appellate authority, is correct. Thus, there are nothing wrong in respondent s taking suo moto re-credit of cenvat credit which was reversed - there is no infirmity in the impugned order - appeal of revenue dismissed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C.L MAHAR Shri Rajesh Agarwal, Superintendent (AR) for the Appellant Shri Hardik Modh, Advocate for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the respondent had availed cenvat credit in respect of outward transportation which was disputed by the department by issuing show cause notice dated 27.11.2007 proposing to deny of cenvat credit on outward transportation. Moreover, the respondent had reversed the cenvat credit in register vide their RJ- 23A-Pt-II, entry No 2583 dated 08.12.2005 and 967 dated 15.06.2007. The show cause notices were issued on 15.06.2007 and 27.11.2007 which were adjudicated vide Order-In-Original dated 21.02.2006and 30.09.2008 whereby the cenvat credit was denied. Being aggrieved by the said Order-In-Original the respondent filed the appeal before this Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shyam Textiles Mills vs. UOI 2004 (6) TMI 590 (Guj.) M/S. JSW Steel (Salav) Ltd ( Earlier Known as Welspun Maxsteel Ltd) vs. C.C.E ST Raigad 2022 (9) TMI 1276- CESTAT Mumbai Ratnamani Metals Tubes Ltd Vs. CCE ST Ahmedabad- III 2014 (35) STR 111 (Tri. Ahmd) Cosmo Films Ltd vs. C.C.EX ST, Vadodara II - 2014 (7) TMI 188 CESTAT Ahmedabad Dabur India vs. C.C.E, Ghaziabad 2016 (342) ELT 125 (Tri. All.) 4. We have carefully considered the submission made by both sides and perused the records. We find that in the present appeal revenue has challenged the suo motu re-credit taken by the respondent. As regard the challenge to Tribunal s order which allowed the cenvat credit on outward transportation before the Hon ble Supreme Court, since the Hon ble Supreme Court has dismissed the Revenue s appeal, the appeal on this ground is sustainable. 4.1 As regard the suo motu re-credit we are of the view that the entire proceeding was to disallow the cenvat credit on outward transportation and during the proceeding the respondent had reversed the credit when the Tribunal has allowed the credit on merit in respect of outward transportation vide T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of this case, where the issue involved is only taking of an admissible cenvat credit on receipt of a favourable order. 6. In judgment of Oudh Sugar Mills Limited. v. CCE, Allahabad [2006 (199) E.L.T. 628 (Tri.-Del.) = 2008 (9) S.T.R. 577 (Tribunal)] relied upon by the Revenue, Cenvat credit was reversed on the basis of a letter from the department and no appeal was filed and suo motu credit was taken after the payments were made. Credit was also not reversed under protest. In the present case, not only the Cenvat credit was reversed under protest but a proper appeal was also filed on the issue before Commissioner (Appeals) on admissibility of credit. Only after getting the case decided in their favour, cenvat credit was taken by the respondent. The facts of this case are thus substantially different from the facts of Oudh Sugar Mills case (supra). Hence the same is not applicable to the facts and circumstances of this case. 7. Similarly, in the case of Vighnahar SSK Limited v. CCE, Pune (supra), it was held that refund claim was required to be filed so that the same could pass the test of unjust enrichment. In the instant case, the Cenvat credit was rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting a favourable decision from the first appellate authority, is correct. Accordingly, the Order-in-Appeal dated 20-12-2006 is upheld and appeal filed by the Revenue is rejected. 4.2 Similar case has been considered by the Hon ble Gujarat High Court on the case of Shyam Textiles Mills vs. UOI 2004 (6) TMI 590 (Guj.)wherein the Hon ble High Court has passed the following order: - 4. We have heard Mr Paresh M Dave, learned counsel for the petitioner and Ms DN Raval, learned Senior Standing Counsel for the respondents. The learned counsel have relied upon the submissions made in their respective pleadings and reiterated the same. 5. Having heard the learned counsel for the parties, we are not in a position to appreciate as to how the respondents can find fault with the petitioner's availing of the amount lying to their credit in the deemed credit register after having succeeded before the Commissioner (Appeals). The respondents appear to be harbouring a misconception that there has to be some provision under which the petitioner can take benefit of the refund only after seeking permission of the authority whose order has been set aside by the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute that the credit balance in Cenvat account during the material period was an eligible credit to appellant. In my considered view the issue in this case squarely falls within the ratio as decided by this Bench in the case of Sopariwala Exports Pvt. Ltd. [2013 (291) E.L.T. 70 (Tri.-Ahmd)] and fortified by the decisions of Hon ble High Court of Gujarat in the case of Subramaniyan Co. as decided in Tax Appeal No. 1151 of 2011 [2013 (296) E.L.T. A123 (Guj.)]. I also find that in a recent decision on similar issue Hon ble High Court of Madras in the case of ICMC Corporation Ltd. [2014-TIOL-121-HC-MAD-CX = 2014 (302) E.L.T. 45 (Mad.)] held in favour of the assessee. Respectfully following the said ratio laid down by the judicial pronouncements, the impugned order is set aside and the appeal is allowed with consequential relief. 5. In view of the above judgments and from the discussion made by us herein above, we do not find anything wrong in respondent s taking suo moto re-credit of cenvat credit which was reversed. 6. Accordingly, there is no infirmity in the impugned order. Hence, the Revenue s appeal is dismissed. ( Pronounced in the open court on 31. 10. 2023 ) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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