TMI Blog2019 (3) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of ICMC Corporation Ltd [2014 (1) TMI 1473 - MADRAS HIGH COURT] have held that process involving availment of suo motu Cenvat credit of the amount reversed earlier is a technical book adjustment and in absence of outflow of funds from assessee, filing of refund claim under Section 11B of the Act does not arise. Appeal allowed - decided in favor of appellant. - APPEAL NO: E/87174/2018 - A/88315/2018 - Dated:- 14-9-2018 - Mr. S.K. Mohanty, Member (Judicial) Shri Prasad Paranjape, Advocate for appellant Shri M.R.Melvin, Superintendent (AR) for respondent ORDER Per: S.K. Mohanty This appeal is directed against the impugned order dated 27.02.2018 passed by the Commissioner of CGST CX, Bhiwandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B of the Central Excise Act, 1944 instead of taking re-credit on its own. 3. The Learned Advocate appearing for the appellant submits that taking of re-credit is merely a technical correction/adjustment of an erroneous accounting entry passed earlier and not fresh availment of credit. Thus, he submits that the provisions of Section 11 B of the Act shall not be applicable. In this context, Learned Advocate has relied on the judgment of Hon ble Madras High Court in the case on ICMC Corporation Ltd. Vs. CESTAT, Chennai reported in 2014 (302) ELT 45 (Mad.) and Hon ble Allahabad High Court in the case of Krishnav Engineering Ltd. Vs. CESTAT reported in 2016 (331) ELT 391 (All.). The Learned Advocate also relied on the decision of Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from assessee to result in filing application under Section 11N of the Central Excise Act, 1944 claiming refund of duty. The contention of the revenue the 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 on the duty paid on the services rendered. Further, the assessee is entitled to take no9te of as per Rule 6(5) of the Cenvat Credit Rules, 2004. As there is no dispute of the fact that a sum of ₹ 3,21,308/- available as Cenvat Credit was in respect of input services, which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 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 hesitation in accepting the plea of the assessee that on a technical adjustment made, the question of unjust enrichment as a concept does not arise at all for the assessee to go by Section 11B of the Central Excise Act, 1944. 17. In the circumstances, we set aside the order of the Tribunal and allow the appeal filed by the assessee and hold that legally speaking there is no impediment in the assessee taking suo motu credit of the sum of ₹ 3,21,308/-. In the light of the above, we allow the appeal. 7. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
