Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (7) TMI 542 - CESTAT MUMBAI

2015 (7) TMI 542 - CESTAT MUMBAI - TMI - Reversal of CENVAT credit - Subsequently, neither any query was raised by the department nor any show cause notice was issued - appellant took re-credit of the said amount - Held that:- re-credit is not against any amount of duty payment. It is admittedly re-credit of an amount of CENVAT credit debited at the instruction of the officers. I find that the amount of debit which was made earlier was legally admissible as CENVAT credit to the appellant. Becaus .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vour of assessee. - Appeal No. E/458/2010 - order no. A/1077/15/SMB - Dated:- 16-4-2015 - Ramesh Nair, Member (J),J. For the Appellant : Shri Mayur Shroff, Adv. For the Respondent : Shri Ashuthosh Nath, Asstt Commissioner (AR) ORDER Per: Ramesh Nair: The appeal is directed against Order-in-Appeal No: SB/04/Th-II/10 dated 06/01/2010 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone - I wherein the learned Commissioner (Appeals) has upheld the order-in-original No. VS/09/2008/27/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t a show cause notice dated 09/07/2007 was issued proposing disallowance of the said re-credit, demand of interest under Section 11AB and penalty under Rule 15 of the CENVAT Credit Rules, 2004. In adjudication, the adjudicating authority has confirmed the demand of ₹ 1,70,737/-, demanded interest under Section 11AB and imposed penalty of ₹ 2,000/- under Rule 15(1) of CENVAT Credit Rules, 2004. Aggrieved by the said order, an appeal was preferred by the appellant before the Commission .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

bility of the said credit. Therefore, the appellant correctly took re-credit of the said amount in their CENVAT credit account. The re-credit is nothing but as good as fresh CENVAT credit availed in accordance with CENVAT credit Rules. It is only a book entry, though for the time being the amount was debited at the instruction of the departmental officers. However, when no demand or show cause notice was issued in respect of the said reversal amount, CENVAT credit of the said amount stand admiss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2008 (254) ELT 154 (Tri.-Ahmd); 4. On the other hand, Shri Ashuthosh Nath, learned Asstt. Commissioner (AR) appearing for the Revenue reiterates the findings of the impugned order. He submits that re-credit of CENVAT credit is not permissible, as held in various judgments. He placed reliance on the following judgments: (i) BDH Industries Ltd. vs. Commissioner of Central Excise 2008 (229) ELT 364 (Tri. - LB); (ii) Commissioner of Central Excise, Pune - I vs. Sunil Industries (P) Ltd. - E/2300/05 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

both the sides. I find that, in the present case, the re-credit is not against any amount of duty payment. It is admittedly re-credit of an amount of CENVAT credit debited at the instruction of the officers. I find that the amount of debit which was made earlier was legally admissible as CENVAT credit to the appellant. Because of the reversal at the instance of the departmental officers, on which the revenue has not raised any dispute on admissibility, re-credit the same by the appellant cannot .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e 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 disput .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

We do not find any good ground to hold that it was 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. 15. Even a cursory reading of the order of the Tribunal in the earlier round of litigation would show t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fact that a sum of ₹ 3,21,308/- for which suomotu 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 t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

made towards any duty payment, which would require a refund claim. The assessee made a specific claim that they had re-credited only the credit reversed on those services mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 and nothing beyond. 19. On this aspect, we specifically posed the question to learned counsel appearing for the assessee, who re-affirmed the same and given the fact that re-credit of the credit reverse was only in respect of those enumerated services under Rule 6(5) o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

im under Section 11B. In view of teh Madras High Court judgment, which is squarely applicable in the present case, re-credit of the amount already reversed by the appellant cannot be objected to. 7. As regard the Revenue's reliance on the Larger Bench judgment in the case of BDH Industries Ltd. (supra), I have observed that in the case of Sopariwala Exports Pvt. Ltd. (supra) this Tribunal has held as under: 5. Learned Additional Commissioner (AR) appearing on behalf of the Revenue would draw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dictory decision of Motorola India Pvt. Limited [2006 (192) E.L.T. 468 (Tri.-Bang.) = 2007 (7) S.T.R. 613 (Tri. - Bang.)] and Comfit Sanitary Napkins (I) Pvt. Limited [2004 (174) E.L.T. 220 (Tri.-Bang.)]. It is his submission that the decision in the case of Motorola India Pvt. Limited was carried in appeal by the Revenue before the Hon'ble High Court of Karnataka wherein the Hon'ble High Court of Karnataka has upheld the said order [2006 (206) E.L.T. 90 (Kar.) = 2008 (11) S.T.R. 555 (Ka .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

unt which has been paid in the cenvat credit and PLA is over and above the amounts which were debited by them for the consignments which were exported by availing the benefit under Rule 19 of Central Excise Rules, 2002 i.e. that they have executed LUT/Bond with the authorities for clearance of the goods without payment of duty. It is undisputed that the appellant is not required to pay any duty on these clearances made by them for export under LUT. 10. At the first blush, I would have to agreed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. I find that the law as has been decided by the Larger Bench seems to be incorrect on the face of the fact that the judgment of the Tribunal in Motorola India Pvt. Limited was carried in appeal before the Hon'ble High Court of Karnataka and their Lordships have upheld the said order. It is seen from the case of BDH Industries Limited that the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

77; 1,58,099/-. The fact was brought to the notice of the department by the appellants in their letter dated 12th June, 2001. In fact, the letter requests the department for correcting the error. This is a simple arithmetical mistake. The departmental authorities could have advised the appellants to adjust the excess amount towards payment of duty for subsequent periods. But they advised the appellant to file a claim for refund. If at all a refund claim is required, the first letter informing th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

does not arise. In any case, the denial of the refund claim for the excess amount paid on account of clerical error is unjust. In the peculiar facts and circumstances of the case, we allow the appeal with consequential relief." 11. Aggrieved by such an order of the Division Bench of the Tribunal, Revenue preferred appeal before the Hon'ble High Court of Karnataka, wherein their Lordships have passed the following order :- [Judgment]. - Revenue is before us aggrieved by the order dated 1 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in that there was an error committed in the matter. Subsequently, a refund application was also filed by the assessee. Claim was rejected on the ground of lapse of time by the Assistant Commissioner. The same was confirmed by the Appellate Commissioner. Aggrieved by the same, the assessee moved the Tribunal. The Tribunal accepted the case of the assessee. It is in these circumstances, the Revenue is before us. 3. Heard Shri Bhaskar, learned Counsel appearing for the Revenue and Smt. Padmini Suda .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version