TMI Blog2014 (1) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Miscellaneous Appeal No.208 of 2013 and M.P.No.1 of 2013 - - - Dated:- 3-1-2014 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Appellant : Mr. S. Jaikumar For the Respondents : Mr. K. Mohana Murali Central Government Standing Counsel for RR2 and 3 R1-Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Appellate Tribunal set aside the demand of Rs.1,29,09,031/- as against the assessee taking into account the reversal of the entire amount of credit taken on input services amounting to Rs.5,38,796/-. The earlier appeal order was the subject matter of consideration before this Court in CMA No.1962 of 2008 which, we have dismissed today taking note of the amendment brought forth under the Finance Act, 2010 to Section 73(2) through insertion of Rule 6(6) of Cenvat Credit Rules. 4. The facts herein is that the assessee took credit of Rs.3,21,308/- on its own out of the reversed credit of Rs.5,38,796/- . the assessee supported its course of action based on the specially listed services under Rule 6(5) of the Cenvat Credit Rules, 2004 and the said provision reads as under: "Rule 6(5): Notwithstanding anything contained in sub-rule (1) (2) and (3), credit of the whole of service tax paid on taxable service as specified in sub-clause (g), (p), (r ), (v), (w), (za), (zm), (zp), (zy), (zzd), (zzg), (zzh), (zzi), (zzk), (zzq) and (zzr) of Clause 105 of Section 65 of the Finance Act shall be allowed unless such services is used exclusively in or in relation to the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise. In so holding, it confirmed the proposal of the Adjudicating Authority and demanded a sum of Rs.3,21,308/- being the Cenvat Credit on Service Tax taken suo motu by the assessee under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act. He also confirmed the proposal for levy of interest as well as imposition of penalty of Rs.80,000/- under Rule 15 of the Cenvat Credit Rules, 2004 for irregular availment of the aforesaid credits in violation of Rule 3 of the Cenvat Credit Rules, 2004. 8. Aggrieved by this, the assessee went on appeal. The First Appellate Authority viewing that the action of the assessee in taking suo motu credit was not as per law held that the assessee was liable to pay interest. However on the penalty imposed, he reduced it to Rs.10,000/-. 9. As regards the claim of the assessee that what was adjusted was only a credit available in the books of accounts and not a refund on payment of duty, the Commissioner held that all types of refund claim had to be filed under Section 11B of the Central Excise Act, 1944 and there could be no suo motu credit of any duty paid in excess or inadvertently to be taken by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eversal of the entry, the assessee took service tax credit on Rs.3,21,308/- in the Cenvat account on its own, without making a formal application. This was objected to by the Revenue by contending that the assessee should have filed a refund application as required under Section 11B of the Central Excise Act, 1944. Thus, according to the Revenue, the amount of Rs.3,21,308/- being the ineligible service tax credit taken and utilized for payment of duty on the clearance of finished goods attracted once again duty under Rule 14 of the Cenvat Credit Rules, 2004 r/w Section 11A of the Central Excise Act, 1944. The assessee countered this by placing reliance on Rule 6(5) of the Cenvat Credit Rules, 2004 as clarified by the Board. According to the Revenue, it being one of accounted entry reversal alone, there being no factory out flow of funds as by way of payment of duty, the question of going by the provisions under Section 11B of the Central Excise Act, 1944 does not arise. 12. Section 11B of the Central Excise Act,1944 relates to claim for refund of duty, which reads as under: (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We do not subscribe to the view expressed by the Revenue. Admittedly, the 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. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004, as there is no dispute of the fact that a sum of Rs.3,21,308/- available as Cenvat Credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 as it existed during the relevant period viz., 2004-2006 g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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