TMI Blog2015 (10) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... or for rejection of refund on the ground of limitation and the balance on the ground of mischief on the part of the appellant or its staff. Thus, the impugned order is set aside and it is held that the appellant is entitled to take Cenvat credit of the amount of ₹ 1,81,356/- which is admittedly paid through PLA, the second time along with interest - Decided in favour of assessee. - APPEAL No.E/1564/10 - - - Dated:- 15-9-2015 - Mr.Anil Choudhary, Member (Judicial) Shri.B.P.Singh, Advocate with Rajeev Ravi, Advocate : For The Petitioner Shri.Sanjay Hasija, Supdt. (AR), For The Respondent ORDER Per: Anil Choudhary 1. The appellant assessee is in appeal against Order-in-Appeal No.SB/137/Th-II/10 dated 10/06/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) vide his SCN under reference above for penalty imposed in the matter of late payment of Central Excise dues for the period Dec, 2006 to June 2007 is hereby set aside. Your request for refund of time bar case of ₹ 1,81,365/- is also hereby admitted under the extraordinary circumstances and the court cases described by you and this refund may be had from The Office of the Supdt. (Tech), Boiser-I DN in the shape of Refund order/cheque. However, you are admonished to file your returns in time in future to avoid heavy penalty and other statutory punishments Thanking you, Yours faithfully, Sd/- Asst. Commissioner (Tech)Central Excise, Boiser-I DN, Thane-I. 4. It appeared to Revenue that the above letter was never issued and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority. Aggrieved by the order of the Commissioner (Appeals), the appellant is before this Tribunal. 6. The learned Counsel for the appellant submits that the company is not involved in any fraud. It have nowhere come on record that the appellant or any of its partners have involved in the fraudulent obtaining of the said letter dated 15/05/2008. Further there is no categorical findings with regard to the allegation of fraud against the appellant as stated in the order-in-original. It is further pointed out that refund claim for the month of April 2007 also is not time barred as the refund arose pursuant to payment made through PLA on 24/09/2007 and on 01/10/2007 and as such the relevant date under Section 11B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te on the fact of appellants entitlement for the said credit as held by the Revenue. The said issue have not been reviewed/appealed against by the Revenue and whether the Tribunal is right in dismissing the assessees appeal on the ground that instead of suo motu re-credit credit taken, the appellant ought to have filed refund claim under Section 11B of the CEA, 1944 as proposed in the show-cause notice. Answering the question in favour of the assessee, the Hon ble High Court held as follows: 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 reversed the credit. Strictly speaking, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll. 15. Even a cursory reading of the order of the Tribunal? in the earlier round of litigation would show that it accepted the assessees case of suo motu reversal of the entry. That being the case, the subsequent conduct of the assessee for a follow up action on an amount of ₹ 3,21,308/-, which is only an account entry adjustment, technically speaking cannot be taken exception to either by Tribunal or for that matter by the Revenue. For this, we do not find any need for a finding to be given in the order of the Tribunal in the earlier round of litigation. 16. We do not for a moment deny the fact that a sum of? ₹ 3,21,308/- for which suo motu credit was taken by the assessee was forming part of ₹ 5,38,796/-, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible in law is outside the provisions and such money is not covered under duty of excise. Limitation under Section 11B of Central Excise Act, 1944 is not applicable to the amount paid which cannot be taken as duty of excise. The issue of unjust enrichment in such case does not arise where the assessee furnished proof of non-collection of service tax from the customers. 8. The learned DR relies on the impugned order and further states that the aforesaid case laws relied upon by the appellant are not applicable as the facts are different. 9. Having considered the rival submissions, I find that the Revenue has simply alleged fraud/forgery but the same has not been conclusively held nor any inquiry initiated into the same. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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