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2019 (7) TMI 444

..... AT:- The Respondent had paid service tax from cenvat credit, but the same was objected by the department. The Respondent then paid the said service tax amount in cash. Once they paid the service tax in cash, they become eligible for the re-credit of amount paid by them from cenvat. The issue is no more res - integra and the same stands decided in various judgments of Hon’ble High Court and Tribunal wherein it was held that when the tax stands paid twice, the excess amount is not a tax but has to be considered as deposit. It is further observed that the revenue itself did not treat the amount paid thru cenvat as service tax as the respondent was insisted to pay in cash. Accordingly, once the revenue discarded the payment thru cenvat as .....

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..... o proposed upon them. The Adjudicating authority vide impugned order though allowed the credit but imposed penalty of ₹ 1 lakh under Rule 15 of CCR, 2004 that the Appellant has violated the procedural law prescribed in the matter. 2. Aggrieved, the revenue has filed present appeal on the ground that the adjudicating authority has himself held that the respondent has not complied with the relevant provisions of law, however he failed to specify the provisions of Central Act and Rules which has been complied with by the Respondents. There is no provision of taking suo moto credit as held by Larger Bench of Tribunal in case of BDH Inds. Ltd. 2008 (229) ELT 364 (TRI - LB). 3. The Ld. AR Shri L. Patra reiterates grounds of appeal, he has a .....

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..... n case of Motorola India Pvt. Ltd 2006 (206) ELT 90 (Kar.), the Hon ble High Court held as under: The respondent-assessee by mistake debited an amount of ₹ 1,58,099/- in excess of the duty payable in their PLA/CENVAT account for the month of March 2001. The same was brought to the notice of the Department by the 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. Aggri .....

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..... ice. The Revenue sought to deny utilization of cenvat credit account for payment of output transportation service. To support this contention the ld. AR has relied on C.B.E. & C. Circular No. 97/8/2007, dated 23-8-2007. Admittedly, in this case the period in dispute March, 2006 to March, 2007 and CBEC has issued this Circular only on 23-8-2007 which is after the period in dispute. Therefore, the said circular have no relevance to the facts of this case. Further, I am not going into the issue that whether the appellant is entitled to avail cenvat credit account for payment of output transportation service during the impugned period or not. But the issue before me is that as the appellant has paid service tax on output transportation serv .....

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..... was held that the suo motu credit is not available but in the case of Motorola India Pvt. Ltd. (supra) the Hon ble High Court of Karnataka already held that the suo motu credit can be taken in case of duty has been paid twice, which decision was delivered on 19-7-2006 and the said decision was not considered by the Larger Bench of this Tribunal in the BDH Industries Ltd. (Supra) which was delivered on 9-7-2008. Therefore, the decision of Larger Bench is per incuriam to the decision in or of Motorola India Pvt. Ltd (supra). Further, the issue has been examined by the Hon ble Gujarat High Court in the case of S. Subramanyan & Co. (supra) also wherein the Hon ble High Court affirmed the order of this Tribunal wherein this tribunal said th .....

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