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TMI Blog2019 (7) TMI 2028X X X X Extracts X X X X X X X X Extracts X X X X ..... consumed the wood pulp at their unit in Kumarapatnam, stock transfer a part of it to their unit at Nagda and also clear a portion of it to independent buyers. The appellants vide their letter dt. 01.12.2013 informed the Deputy Commissioner of Central Excise about their intention to avail CENVAT credit on inputs used in the manufacture of wood pulp which is captively consumed following the decision of the Tribunal in the case of Ballarpur Industries. Department issued a show-cause notice dt. 14/12/2004 proposing to demand amount equal to 8% or 10% of the value of exempted goods. The appellants reversed an amount of Rs. 1,91,93,628/- being the credit on inputs used in the manufacture of rayon grade wood pulp under protest. Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that credit reversed is merely a deposit and any amount reversed in excess is liable to be restored to the applicants and the provisions of Section 11B shall not be applicable in such cases. Moreover, they have reversed the credit under protest. He submits that it is erroneous to presume that every refund claim of the appellant will be subject to Section 11B of the Central Excise Act, 1944 (CEA for short). A claim of refund can be tested in terms of Section 11B of CEA 1944 only if it qualifies as duty in terms of the levy under the relevant statute. The learned counsel further submits that the principle of unjust enrichment is not applicable. The refund claimed by the appellants is of Cenvat credit attributable to inputs used in the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.3. Learned counsel further submits that Commissioner observes that appellants have reversed the credit voluntarily and therefore granting of refund without application of Section 11B of the CEA 1944 is not in accordance with the provisions of the law. The appellant contends that the above observation is not correct as they have reversed after issuance of show-cause notice and have informed the jurisdictional Asst. Commissioner vide their letter dated 06/11/2007 that they are reversing under protest. The appellant submits that reversal of credit was consequential to the decision of Supreme Court of India in the case of Ballarpur Industries. 5. Learned AR for the Department has reiterated the findings of the OIO. 6. Heard both sides and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of S. Subrahmanyan& Co. v. Commissioner, 2011 (268) E.L.T. 497 held as under : - "In the present case, we do not need to expand the issue by examining the question of refund under Section 11B of the Central Excise Act, Since facts are rather peculiar and simple. As held and observed by the Tribunal, the respondent had already paid excise duty of Rs. 3.58 lacs. Part of the VAT was not paid. While paying difference, the respondent erroneously once over-paid the excise duty of Rs. 3.58 lacs. This mistake was detected shortly thereafter and before the end of the month, the respondent made necessary, entries in the Cenvat Register and corrected the mistake. The Tribunal only viewed it as an arithmetical error which the respondent was auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty........." 7. In view of the above, we find that the issue of restoring the credit by the appellants where credit has been reversed in excess has been settled in favour of the appellants. It is not the case of the Department that the credit or duty for that matter requires to be paid twice. The appellants have reversed the credit before the order of the confirmation of reversal in view of Hon'ble Supreme Court's judgment in the case of Ballarpur Industries. The appellants have demonstrated that they have only availed the credit and have not utilised it. As longs as the credit is not utilised, the entries in the register are just book entries an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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