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2012 (2) TMI 482 - AT - Central ExciseCENVAT credit - whether it was open to the appellant to take credit suo motu of an amount of ₹ 3,63,242/- in their CENVAT account on the ground that they were not liable to pay duty to such extent on their final product by way of reversal of credit? - Held that - the assessee is not entitled to take credit suo motu of the excess amount paid by them in the absence of any provision in the Central Excise Act or Rules for suo motu taking of credit. Scope of SCN - Held that - the original and appellate authorities were proceeding clearly on the basis of the show-cause notice. By mere reason of the fact that these authorities used the expression suo motu, which was not found in the show-cause notice, it cannot be said that they travelled beyond the scope of the SCN. Appeal dismissed - decided against appellant.
Issues:
1. Whether the appellant could take credit suo motu of an amount in their CENVAT account without being liable to pay duty. 2. Applicability of Circular of the Board and the judgment of the Hon'ble Supreme Court in a specific case. 3. Interpretation of the show-cause notice and the legality of taking credit suo motu. 4. Comparison with the BDH Industries case regarding the entitlement to take credit suo motu. 5. Admissibility of the refund claim and the legality of taking excess duty credit. Analysis: 1. The appeal revolved around the appellant's action of taking credit suo motu in their CENVAT account without paying duty on the final product, leading to a demand for recovery by the department. The appellant contested the demand, but the adjudicating authority confirmed it, imposing a penalty as well. The issue was whether the appellant had the right to take such credit without proper authorization. 2. The appellant's counsel relied on a Circular of the Board and a Supreme Court judgment to support their case. They argued that the Tribunal's decision in another case was not applicable here. The counsel emphasized discrepancies in the show-cause notice and requested leniency in the penalty imposed on the appellant. 3. The Deputy Commissioner argued based on the BDH Industries case, highlighting the absence of a provision allowing suo motu credit without proper sanction. They also referred to another case supporting the recovery of amounts taken suo motu in the CENVAT account. 4. The judge, after considering the submissions, found that the issue was already settled against the appellant by the BDH Industries case. The judge discussed the two main issues from the BDH Industries case and concluded that the appellant was not entitled to take credit suo motu without a specific provision in the Central Excise Act or Rules. 5. The judge rejected arguments attempting to distinguish the BDH Industries case, emphasizing that the decision on taking suo motu credit was applicable to the present case. The judge also dismissed the argument that the impugned order exceeded the scope of the show-cause notice, stating that the authorities had based their decisions on the notice's allegations. 6. Ultimately, the judge dismissed the appeal, citing the precedent set by the BDH Industries case and finding no merit in the appellant's arguments regarding the legality of taking credit suo motu. The judgment was pronounced and dictated in open court, concluding the legal proceedings.
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