TMI Blog2013 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... hakur, JJ. For the Appellant: Shri H. Mathew, A.R. For the Respondent: Shri Willington Christian, Advocate JUDGEMENT Per : Mr. H.K. Thakur; This appeal has been filed by the Revenue against the Order in Appeal No. RS/415/SRT-II/2006 dated 22.12.2006 under which suo-moto credit of Rs. 21,97,337/- was taken by M/s. Vardhman Acrylics Limited, Bharuch (respondent) was held proper when Commissioner (Appeals) decided the issue of admissibility of cenvat credit in their favour vide Order in Appeal No. RKS/253-254/SRT-II/2004 dated 24.09.2004. Aggrieved by the order in appeal dated 22.12.2006, Revenue has filed this appeal on the grounds that following judgments have not been considered by Commissioner (Appeals) on the issue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited [2012 (28) STR) 439 (Tri.)] (i) CCE vs. Commercial Synhags Ltd [2006 (75) RLT 319 (Cestat)] (j) CCE vs. Flex Industries Ltd. [2004 (64) RLT 583 (Cestat)] 5. The only issue required to be deliberated in this appeal is whether or not respondent can take cenvat credit suo-moto, when the issue of cenvat credit on merits was decided in their favour by Commissioner (Appeals). Appellant department has relied upon the certain judgments in their grounds of appeal as well as during the course of hearing and emphasized that suo-moto credit is not permissible and the same could have been taken by following the refund procedure under Section 11B of the Central Excise Act, 1944. It is observed that the earliest of the relied upon judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited vs. CCE Allahabad, - [2006 (199) ELT 628 (Tri. Del.)] 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-moto 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f pre-deposits, on success in an appeal. 8. The Hon ble High Court, in the case of Shyam Textile Mills ANR vs. UOI Ors [2005 (67) RLT 488 (Guj.)] has also decided the issue in favour of the assessee as per Para 5 of this order, reproduced below:- 5. Having head 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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