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TMI Blog2017 (10) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Service Tax Commissionerate as provider of taxable output services. During the course of audit, it was noticed that appellant had utilised excess CENVAT credit for discharge of service tax liability in contravention of provisions of Rule 6(3) of CENVAT Credit Rules, 2004 in fact they have utilised 80% from CENVAT credit account which they are allowed to use as they were rendering taxable as well as exempted output services. The appellant discharged the differential service tax liability of Rs. 15,45,422/- along with interest. A show-cause notice was issued for appropriation of the said amount paid and also for imposition of penalty. The adjudicating authority after following due process of law appropriated the amount paid by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B of the Central Excise Act, 1944 to file a return with the authorities in respect of the amount which, according to them, they have paid twice. There is no provision for availing the suo motto credit in the CCRs 2004 is the submission of the learned AR. 7. On careful consideration of the submissions made by both sides, it is not in dispute that the appellant had paid an amount of Rs. 15,45,422/- along with interest on being pointed out by the audit department that they have wrongly utilised the CENVAT credit of this amount while debiting the tax liability towards the output services provided by them. It is also undisputed that the appellant is eligible for availment of CENVAT credit of Rs. 15,45,422/-. On the face of it, I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the notice of the Larger Bench when they heard the Larger Bench reference. In order to appreciate the correct position of the law I first, reproduce the ratio laid down by the Tribunal in the case of Motorola India Pvt. Limited, which is as under :- "6. We have gone through the records of the case carefully. In the month of March 2001, the appellants debited excess amount in their CENVAT account to the tune of Rs. 1,58,099/-. The fact was brought to the notice of the department by the appellants in their letter dated 12th June, 2001. In fact, the letter requests the department for correcting the error. This is a simple arithmetical mistake. The departmental authorities could have advised the appellants to adjust the excess amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent in terms of a letter dated 12-6-2001. The authorities directed the respondent to file a refund claim. Another letter was submitted by the assessee stating therein that there was an error committed in the matter. Subsequently, a refund application was also filed by the assessee. Claim was rejected on the ground of lapse of time by the Assistant Commissioner. The same was confirmed by the Appellate Commissioner. Aggrieved by the same, the assessee moved the Tribunal. The Tribunal accepted the case of the assessee. It is in these circumstances, the Revenue is before us. 3. Heard Shri Bhaskar, learned Counsel appearing for the Revenue and Smt. Padmini Sudaram, learned Counsel appearing for the assessee. Perused the order of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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