Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Shree Rubber Plast Co Pvt Ltd Versus Commissioner of Central Excise Thane-II

2015 (7) TMI 542 - CESTAT MUMBAI

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. Because of the reversal at the instance of 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

- 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/09/2008/27/3/2008. 2. The fact of the case is that 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

s 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 Commissioner (Appeals), who upheld the order-in-ori .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 admissible to the appellant and, therefore, 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

e 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-Mum; (iii) Commissioner of Central Excis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent 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 rel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n 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 ₹ 3,21, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

at 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 that it accepted the assessee's case 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

r 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 to go by Section 11B of the Central Excise .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ld 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) of the Cenvat Credit Rules, 2004 on which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as 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 my attention to the decision of the Larg .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

imited [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 (Kar.)]. It is his submission that this deci .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dit 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 said judgment of the Hon'ble High Co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he 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 the department of the mistake and requestin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 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 1-9-2005 passed in appeal No. E/83/2004 by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he 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 as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| 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