9911796707
TMI Blog2023 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice". The Appellant paid Rs.4,44,960/- by debit to Cenvat Account vide Entry Sl.No.329 dated 30th March 2009 along with interest of Rs.37,560/-. 2.2 In the light of the above, the Appellant on the same day paid Rs.9,85,086/- suo motu by debit to Cenvat Account vide Entry Sl.No.330 towards service tax on"Renting of Immovable Property Service" rendered during Financial Year 2008-2009. These payments were intimated to the Range Officer vide letter dated 31st March, 2009. 2.3 During their subsequent Audit during Financial Year 2008-2009, the Auditors vide Audit Memo dated 19.01.2010, pointed out that the payment of service tax of Rs.9,85,086/- made on 30.03.2009 by debit to Cenvat Account was irregular and directed the Appellant to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice. 2.7 The Appellant's Appeal there-against, was rejected by the impugned Order-in-Appeal. Hence, the present appeal before the Tribunal. 3. The Ld.Advocate appearing on behalf of the Appellant, relied upon the grounds of appeal and filed a written submission along with copies of relied upon decisions. 4. Heard both sides and perused the appeal records. 5. I find that the Appellant had discharged the duty burden from their PLA Account and as such, there is no dispute about the same. With such payment of duty out of PLA, they have reversed the debit entry made by them in their Credit Account which was used for payment of duty earlier. Though there was no proposal in the Showcause notice to deny such re-credit, the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004. as there is no dispute of the fact that a sum of Rs. 3,21,308/- available as Cenvat credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 6. At this stage, the Ld.Authorised Representative for the Revenue has strongly relied upon Larger Bench's decision of the Tribunal in the case of BDH Industries Ltd. Vs. Commissioner of Central Excise (Appeals), Mumbai I reported in 2008 (229) ELT 364 (Tri.-LB). I find that the decision of the Larger Bench of the Tribunal is dated 09.07.2008, whereas the decision of the Hon'ble High Court of Madras was delivered on 03.01.2014 i.e. much after the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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