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2014 (1) TMI 1473 - HC - Central ExciseAvailment of suo moto credit which was reversed earlier - eligible cenvat credit credit under Rule 6(5) of CCR - Refund claim under Section 11B - Whether the assessee was entitled to take credit to the tune of ₹ 3,21,308/- as per Rule 6(5) of the Central Excise Rules, 2004 in respect of those services specifically mentioned in the book, which was earlier reversed by the assessee - Held that:- assessee originally availed the Cenvat Credit on service tax for discharging its liability. However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty - it was not a case of refund of duty falling under Section 11B of the Central Excise Act, 1944 and that the assessee was to comply with the provisions of Section 11B of the Act. The view of the Tribunal that the assessee should seek reversal in the appropriate judicial forum, if the assessee was aggrieved by the earlier order herein does not arise at all. Sum of ₹ 3,21,308/- for which suo motu credit was taken by the assessee was forming part of ₹ 5,38,796/-, which was earlier reversed by the assessee. On the admitted fact, ₹ 3,21,308/- represented the enumerated input services as given under Rule 6(5) of the Cenvat Credit Rules, 2004, we have no hesitation in accepting the plea of the assessee that on a technical adjustment made, the question of unjust enrichment as a concept does not arise at all for the assessee to go by Section 11B of the Central Excise Act, 1944 - order of the Tribunal is set aside and allow the appeal filed by the assessee and hold that legally speaking there is no impediment in the asseesee taking suo motu credit - Decided in favour of assessee.
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