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TMI Blog2014 (2) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... Per: M.V. Ravindran 1. This appeal is directed against Order-in-Appeal No.SRP/87/DMN/2013-14, dt.05-06-2011. 2. The demand has been made against the appellant on the ground that the appellant is a 100% EOU. It was observed that the appellant had applied for refund of terminal excise duty before Development Commissioner, KASEZ and debited the amount of Rs.14,87,572/- vide CENVAT to satisfy the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of BDH industries - 2008 (229) ELT 304 and Mafatlal Industries - 1997 (89) E.L.T. 247 (SC) to hold that if an assesee pays the duty in excess in that case the claim will have to pass the test of unjust enrichment, even if it is not expressly provided for in the statute. 3. Heard both sides and perused the records. 4. The Appeals are listed for stay. However I find that the issue can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 wherein it was held that the CENVAT credit can be availed suo moto as the amount was found to be not payable to the Government. I also find that the case in hand is related to reversal of CENVAT credit and suo moto availment of said credit due to withdrawal of refund claim of terminal excise duty. It is also a fact on record that the appellant availed credit when they found that there was inordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This being not a case of refund of excess paid excise duty, no reason to doubt that the assesee has not been enriched unjustifiably. This is a case of availment of CENVAT credit legitimately eligible to the appellant in terms of CENVAT credit Rules, 2004. The revenue has not alleged or anything on record that the CENVAT credit in question was wrongly taken contrary to the provision such as non re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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