TMI Blog2008 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... hri D.H. Nadkarni, Advocate, for the Appellant. Shri H.B. Negi, SDR, for the Respondent. [Order]. - This appeal is directed against the Order-in-Appeal No. BR (587) 45/MV/2006, dated 7-3-2006. 2. The relevant facts that arise for consideration are the appellant herein had erroneously debited an amount of Rs. 5,57,339/- twice over in the PLA during the month of February 2004. After noticing that they have debited an amount twice over, the appellant vide letter dated 31-8-2004 informed the Assistant/Dy. Commissioner that they are taking credit of the amount of Rs. 5,57,339/- in their RG 23A Part-II vide Entry No. 274, dated 31-8-2004. The lower authorities issued a show cause notice dated 4th April 2005 directing the appellant wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice and hence the impugned order is sought to be set aside. He relies upon the following decision. 1. Thermoflex Gable Inds. [2006 (196) E.L.T. 124 (T)] 2. Transpek Inds. Ltd. [2001 (138) E.L.T. 189 (T); Upheld by Supreme Court [2002 (140) E.L.T. A97 (S.C.)] 3. Raphael Pharmaceuticals Ltd. [1988 (38) E.L.T. 11 (A.P.)] 4. Punjab Communications Ltd. [2006 (199) E.L.T. 161 (T)] 5. The ld. SDR on the other hand would submits that the issue involved in this case is now squarely decided by the Larger Bench, the appellant cannot avail credit on a letter which was given by him for availing credit in RG 23 Part-II, the appellant needs to produce duty paying document. The letter addressed by the appellant cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs. 5,57,339/- and accordingly we have taken the credit of the said amount suo motu vide our Entry No. 274 dated 31-8-2004. 4. In this connection we refer to and rely on the Hon'ble Tribunal judgment in the case of CCE v. Sanghi Polyesters - 2004 (169) E.L.T. 128 (Tri.-Bang.) 5th July 2004 wherein the Hon'ble Tribunal has held that "The assessee is entitled to take credit of excess duty paid by the assessee". A copy of the aforesaid judgment is submitted herewith for ready reference." It can be noticed from the above reproduced letter that the availment of the credit by the appellant on the said letter was only on the ground that they have debited monthly duty for the month of February twice over. I find that on this point bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on". It can be noticed that the above ratio of the Larger Bench squarely covers the issue against the appellant. 7. As regards the point raised by the ld. Counsel that both the authorities have traversed beyond the allegations made in the show cause notice, I find that the show cause notice issued to the appellant clearly alleges as under :- "They have availed Cenvat credit of Rs. 5,57,339/- on the basis of their letter No. F/BDH/CE/185/2004-05, dated 31-8-2004 vide RG 23A Part-II Entry No. 274, dated 31-8-2004 even after knowing that the duty credit cannot be taken on other than documents specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
