TMI Blog2019 (3) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... r mistake, the appellant very promptly Look re-credit of the same in their CENVAT Credit Register in the month of January, 2015. The re-credit entries were reversed because of advice by the department and a refund claim was filed. The Appellants cannot be penalised for action taken by them at the instance of Revenue Authorities which itself was not in accordance with law. Appeal allowed - decided in favor of appellant. - APPEAL NO: E/87514/2018 - A/85340/2019 - Dated:- 19-2-2019 - Shri Ajay Sharma, Member (Judicial) Shri V.S. Sejpal, Advocate for appellant Shri A.B. kulgod, Assistant Commissioner (AR) for respondent ORDER The present appeal has been filed against impugned order dated 19.03.2018 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the Appellant submitted that suo moto recredit in the CENVXF credit register for rectifying the error is permissible as per various decisions of Hon'ble High Courts as well as of this Tribunal and that the directions of the Range Superintendent to reverse the re-credit amount of ₹ 18,19,855/- was incorrect and he cited the following decisions in support of his submissions:- (i) ICMC Corporation Ltd vs. CESTAT, Chennai [2014 (302) E.L.T. 45 (Mad.)] (ii) Krishnav Engineering Ltd vs. CESTAT [2016 (331) E.L.T. 391(All.) (iii) Union of India vs. J.K. Laxmi Cement Ltd. [2018(8) G.S.T.L. 231 (Raj.)] He further submitted that the decision of the Larger Bench of Tribunal in the matter of BDH Industries Ltd. vs. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court, while deciding the issue in favour of appellant therein held as under:- (i) We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat credit on Service Tax for 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 availed off by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. (iv) 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 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The time period of one year for filing a refund claim as prescribed under Section 11B ibid, is not applicable in case of refund of duty tax, which was paid excess or paid under mistake of law. It is not disputed that the appellant had paid the excess amount in the month of December, 2014 and immediately on realizing their mistake, the appellant very promptly Look re-credit of the same in their CENVAT Credit Register in the month of January, 2015. But since, after the passage of 18 months, the Jurisdiction Range Superinten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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