TMI Blog2015 (7) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/09/2008/27/3/2008. 2. The fact of the case is that the appellant availed CENVAT credit on input and capital goods. On a visit of the Central excise officers, Preventive Unit, Thane - I on 20/02/2007, on their insurance, the appellant have reversed CENVAT credit of ₹ 1,70,737/- on 12/03/2007. Subsequently, neither any query was raised by the department nor any show cause notice was issued. Therefore, the appellant took re-credit of the said amount of ₹ 1,70,737/- on 07/05/2007. For this re-credit 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/-, dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . E/974/2009; (v) New Allenberry Works vs. Commissioner of Central Excise, Kolkata (vi) BDH Industries Ltd. vs. Commissioner of Central Excise 2008 (231) ELT 61 (Tri.-Mum); (vii) Titawi Sugar Complex vs. Commissioner of Central Excise, Meerut-I 2009 (247) ELT 519 (Tri.-Del.) 5. I have carefully considered the submissions made by 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 be faulted with. As per the judgment relied upon by the learned counsel, in one of the judgment, the honble Madras High Court has held as under: 13. 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 rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices 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. 17. In the circumstances, we set aside the order of the Tribunal and allow the appeal filed by the assessee and hold that legally speaking there is no impediment in the asseessee taking suomotu credit of the sum of ₹ 3,21,308/-. In the light of the above, we allow the appeal. 18. We may also note that in ground (C) of the appeal grounds, the assessee had specifically pointed out that what they debited in the Cenvat Account was not at all 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demand of an amount taken as suo motu credit by the appellant having come to the conclusion that they have paid this duty twice over. 9. The undisputed facts are that the amount 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 with the submissions made by the Revenue authorities that the judgment of the Larger Bench in the case of BDH Industries Limited (supra) would be applicable in this case, as the identical facts were decided by the Larger Bench but on deeper consideration, I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited , sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the and credit was taken in RG 23A Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing order :- [Judgment]. - Revenue is before us aggrieved by the order dated 1-9-2005 passed in appeal No. E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. 2. The respondent-assessee by mistake debited an amount of ₹ 1,58,099/- in excess of the duty payable in their PLA/CENVAT account for the month of March 2001. The same was brought to the notice of the Department by the respondent in terms of a letter dated 12-6-2001. The authorities directed the respondent to file a refund claim. Another letter was submitted by the assessee stating therein 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 Sudaram, learned Counsel appearing for the assessee. Perused the order of the Tribunal. 4. The Tribunal, after not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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