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Indrox Global Pvt. Ltd. Versus Commissioner of Central Excise, Thane-II

2015 (10) TMI 1289 - CESTAT MUMBAI

Denial of refund claim - Restriction on utilization of cenvat credit for delayed payment of duty according to the provisions of Rule 8 (3A) - duty was initially debit to Cenvat account, but later paid in cash - held that:- 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 fact that the amount in default for the month of April, May and June 2007 was paid on 24/09/2007 and on 01/10/2007, I hold that the rele .....

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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 10/06/2010 passed by Commissioner of Central Excise (Appeals), Mumbai-I by which rejection of their refund claim have been upheld. 2. The brief facts are that .....

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ing so pointed out and are being advised, the appellant again paid the said amount of ₹ 1,81,356/-with interest by separate challans on 24/09/2007 and on 01/10/2007. Thereafter the appellant filed a refund claim on 12/05/2008 claiming the refund of amount earlier paid by way of debit to Cenvat account. 3. A show-cause notice dated 21/08/2008 was issued observing therein that subsequent to filing of refund the appellant have also filed a letter dated 15/05/2008. The contents of the letter a .....

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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, Than .....

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ng the tax paid for the month of April 2007, appeared to be time barred. 5. The show-cause notice was adjudicated vide order-in-original dated 12/05/2009. After considering the submissions of the appellant and their reply to show-cause notice, so far the contention of the appellant that the mischief was committed by the Excise clerk who have committed fraud with the company (appellant) which resulted in the default in the monthly payment and the aforesaid letter was fabricated by the said employ .....

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ned order dated 10/06/2010 rejected the appeal, upholding findings of 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 a .....

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Accordingly, he prayed for allowing the refund being fully allowable. He further states that in the case of total payment (in cash) as in the present case, the assessee is entitled to take suo motu credit of the amount earlier debited in Cenvat account. The appellant relies on the ruling of this Tribunal in the case of CCE Chandigarh Vs. Ralison Carbon Black Ltd., - 2008 (229) ELT 113 (Tri-Del) wherein the case of default in monthly payment, facility to pay by Cenvat credit under Rule 8 (3A) of .....

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ee had taken suo motu credit of the Cenvat reversed earlier. The question of law framed was that Whether the Tribunal is right in dismissing the appeal on the ground that the appellant ought to have filed an appeal against the earlier order of the Revenue for the purpose of claiming re-credit, when there is no dispute 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 .....

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sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the 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 .....

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period viz., 2004-2006 getting the reversal of the entry is in tune with its stand taken, which was accepted by the Tribunal in the earlier round of litigation. 14. We do not find any good ground to hold that it was a case of refund of duly 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 .....

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e. 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/-, 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 hesitati .....

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. 7. Learned Counsel further submitted that the assessee could have been even taken suo motu credit on the second payment made through PLA of the earlier amount debited to Cenvat Credit instead of filing the refund claim as held by the Hon ble High Court. The appellant also relies on the ruling of the Hon ble Madras High Court in the case of Natraj & Venkat Associates Vs. Asst. Comm. Of Service tax, Chennai 2010 (249) ELT 337 (Mad) wherein the assessee had erroneously deposited the service t .....

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