TMI Blog2017 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary, 2005, an incidence of fire has taken place in which some of the inputs and raw materials were destroyed. The credit of Rs. 88,187/- involved on such inputs was reversed on being pointed out by the Audit Party on 14.03.2006. Since they have not paid the interest on the said amount, a show-cause notice dated 02.02.2007 was issued for recovery. The said show-cause notice was adjudicated vide Order-in-Original No. 65/2007-08/AC dated 31.7.2007 whereby the deposit of Rs. 88,187/- was appropriated and recovery of interest amounting to Rs. 12,798/- under Section 11AB of the Act was ordered. However, no penalty was imposed. 3.1 Being aggrieved by the impugned order, both the departments and appellants have filed appeals before the Commissioner (Appeals), who vide his Order-in-Appeal No. SRK/115-116/M-III/2008 dated 28.2.2008 has set aside the Order-in-Original and allowed the appeal filed by the appellants and the departmental appeal was rejected. In pursuance to the Order of the Commissioner (Appeals), the appellants took suo motu credit of the CENVAT credit. However, the department has not accepted the said Order-in-Appeal dated 28.2.2008 and has filed an appeal before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsonance with the law. 6. Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. [2006 (206) ELT 90 (Kar.)] on the issue of availment of suo motu credit held as under. "The Tribunal, after noticing the material facts has chosen to allow the claim on the basis that the amount paid by mistake cannot be termed as duty in the case on hand. The Tribunal also stated that the time bar does not apply in such cases. Somewhat in similar circumstances, the Apex Court in India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358 has chosen to accept the case of the assessee. The Madras High Court subsequently noticing the Judgment of the Supreme Court has also chosen to hold that the claim is reasonable on the facts of this case. In the light of the case laws, we are of the view that the order of the Tribunal does not require any interference by us. No question of law arises. The order is based on the law laid down by the Apex Court." 7. Hon'ble High Court of Madras in the case of ICMC Corporation Ltd. [2014-TIOL-121-HC-MAD-CX] on the issue of availing of suo motu credit held as under:- "11. The assessee are manufacturers of Mono Cartons and Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12-A as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from or paid by him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:] [Provided further that] the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest. [(2) If, on receipt of any such application, the [Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find any good ground to hold that 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 of suomotu reversal of the entry. That being the case, the subsequent conduct of the assessee for a follow up action on an amount of Rs. 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 Rs. 3,21,308/- for which suomotu credit was taken by the assessee was forming part of Rs. 5,38,796/-, which was earlier reversed by the assessee. On the admitted fact, Rs. 3,21,308/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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