Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2016 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (12) TMI 1111 - AT - Central ExciseCENVAT credit - credit of duty paid by the assessee during pendency of appeal, and taking suo-muto credit under intimation to revenue on being successful in appeal - the suo motu taking credit of Cenvat credit debited in excess due to clerical mistake, whether the same is in violation of the provisions of the Act and the Rules? - Held that: - the issue is no longer res-integra and this issue have been considered by Hon’ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-III Vs Motorola India Pvt. Ltd. [2006 (7) TMI 223 - HIGH COURT OF KARNATAKA AT BANGALORE], wherein under similar facts and circumstances, where the assessee had debited excess Cenvat credit and sought permission of revenue for taking re-credit by correcting the error, but was advised to apply for refund. When such refund claim was made, the same was rejected as time-barred. The Hon'ble High Court held that the contention of the assessee that the amount paid by mistake is not duty, merits consideration. In fact, duty paid on goods is indicated in the invoices. Therefore, there is no question of time bar. The amount paid should be considered as deposit and not duty. Further, on going through the relevant provisions of Rule 12 of CCR, 2002 or Rule 14 of CCR, 2004 which provides for recovery of Cenvat taken wrongly or erroneously, does not call for any recovery of Cenvat credit taken of an amount of pre-deposit made during pendency of appeal, taken suo motu. Thus, I hold that the show cause notices in both the matters are misconceived. Accordingly, the impugned orders are set aside - appeal allowed - decided in favor of assessee.
|