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

2015 (10) TMI 1289 - CESTAT MUMBAI

2015 (10) TMI 1289 - CESTAT MUMBAI - TMI - 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 24/09/2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

econd 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 10/06/2010 passed by Commissioner of Central Excise (Appeals), Mumbai-I by which rejection of their refund claim hav .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

81,356/-. It is an admitted fact that on being 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 dat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eriod 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. Commissio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

laim for the amount of ₹ 97,467/- being 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 aforesa .....

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 the Commissioner (Appeals) who vide impugned 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 n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for the month of April 2007 is time barred. 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 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

the Hon ble High Court was that the assessee 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or discharging its liability. However, for 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 av .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es, 2004 as it existed during the relevant 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 appr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y 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/-, 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 Cen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the light of the above, we allow the appeal. 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 asses .....

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