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2017 (2) TMI 102 - CESTAT MUMBAI

2017 (2) TMI 102 - CESTAT MUMBAI - TMI - Re-credit of duty from cenvat account - Rule 8 (3A) of Central Excise Rules, 2002 - requirement of payment of duty in cash during default period - the duty was paid twice from cenvat credit and second time from PLA on insistance of the department - Held that: - the appellant have not taken suo moto credit on their own but they made number of request by writing letter to the department regarding re-credit of amount in the cenvat account but the department .....

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s not legal and proper - re-credit of the amount by the appellant is correct and the same cannot be recovered. - Unjust enrichment - Held that: - the duty was paid twice on the same clearances however the duty passed on is only one time duty paid on the clearances, therefore the unjust enrichment does not apply. Moreover, the amount paid from Cenvat account has not been considered by the department as excise duty that is a reason they asked to pay in cash, which was complied by the appellant .....

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Central Excise Rules, 2002 during the default period they have been paying duty from Cenvat account. The department has insisted that as per the provision during the default period duty is required to be paid in cash and on consignment basis and not from Cenvat Credit. Complying the department s direction the appellants have paid entire duty in cash which was earlier paid from cenvat account on 5.10.2009. Thereafter appellants have informed the department regarding the payment of duty in cash a .....

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requested the Superintendent to allow them to take re-credit in the light of the Tribunal decision in the case of Krishna Chemicals Vs. Commissioner of Central Excise, Ahmedbad-I 2009 (244) ELT 580(Tri.-Ahmd.) Since no response was received by the appellant. They have re-credited the amount of ₹ 2,46,676/- and intimated the department vide their letter dt. 29.6.2010 before that the appellant informed the department vide letter dt. 29.6.2010 that they are intended to re-credit the amount. .....

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as made in respect of the duty earlier paid from Cenvat Account. After insistance of the department the appellant had paid duty twice but second time the duty was paid in cash along with interest. Therefore on the same clearances duty was paid twice, therefore the duty paid from cenvat become eligible for re-credit in the cenvat account. Both the lower authorities have ordered for recovery of the said re-credit only on the ground that the appellant should have filed refund claim. She submits tha .....

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and High Court have passed various judgments and as of now is settled that re-credit is permissible. In this support she placed reliance on the following judgments: (i) Shree Rubber Plast Co. Pvt. Ltd. 2015-TIOL-1285-CESTAT-MUM (ii) M/s. Balmer Lawrie And Co. Ltd. Vs. Commissioner of Central Excise & Service Tax, Vapi 2014-TIOL-625-CESTAT-AHM (iii) NOCIL Vs. Commissioner of Central Excise, Behlapur 2014-TIOL-203-CESTAT-MUM (iv) ICMC Corporation Ltd. Vs. CESTAT, Chennai 2014 (302) E.L.T. 45 .....

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appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that there is no provision for re-credit of any amount which was debited by the assessee in their Cenvat account, the only way out to claim the credit is by way of filing refund claim which appellant has failed to comply. He submits that refund claim is necessary in order to verify the aspect of limitation as well as unjust enrichment therefore without verification of the said fact taking re-cred .....

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on the same clearance. Since there is no dispute about the payment made twice on the same clearance, I do not find any reason why the appellant is not entitled for the re-credit of duty paid from cenvat account when they have paid in cash that to complying the instruction of the department. It is also to be noted that the appellant have not taken suo moto credit on their own but they made number of request by writing letter to the department regarding re-credit of amount in the cenvat account b .....

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