2017 (7) TMI 381 - AT - Central Excise

CENVAT credit - credit availed suo moto without following refund process as prescribed under Section 11B - Held that - suo moto credit taken by the appellant is not against the amount which was paid as duty whereas suo moto credit is taken against debit of cenvat credit due to inadvertent, which is excess to the already debited the duty amount in the previous month therefore second time debit made by the appellant is not duty which only happened due to inadvertent mistake of the appellant. Accordingly, no process of Section 11B is required for claiming refund. The appellant has rightly rectified mistake on their own by taking suo moto credit - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appellant debited Cenvat credit twice inadvertently, took suo moto credit, department issued show cause notice for denial of credit, adjudicating authority confirmed demand, Ld. Commissioner(Appeals) upheld, appellant appealed.

Analysis:

1. Debit of Cenvat Credit Twice:
The appellant debited Cenvat credit of ?22,33,880 twice, once in June 2007 and inadvertently again in July 2007. The excess amount was rectified by taking suo moto credit in June 2008. The department inquired based on ARI return, and the appellant explained the situation in response to a letter.

2. Show Cause Notice and Denial of Credit:
A show cause notice was issued for denying the Cenvat credit availed suo moto without following the refund process under Section 11B. The adjudicating authority confirmed the demand, which was upheld by the Ld. Commissioner(Appeals), leading the appellant to appeal the decision.

3. Appellant's Argument:
The appellant's representative argued that the excess debit was due to a clerical error, not towards duty payment, and thus, the suo moto credit taken was correct. Referring to various judgments, the representative highlighted that similar credits were allowed in cases of clerical errors, supporting the appellant's position.

4. Revenue's Position:
On the other hand, the Revenue's representative reiterated the findings of the impugned order, stating that there were no legal provisions for availing suo moto credit, and thus, the appellant wrongly availed the credit.

5. Tribunal's Decision:
After considering both sides' submissions and the records, the Tribunal found that the suo moto credit was not against duty payment but was rectified due to inadvertent excess debit of Cenvat credit. As it was not a duty payment, no Section 11B process for claiming a refund was required. Citing previous judgments, the Tribunal held that the appellant rightly rectified the mistake by taking suo moto credit, setting aside the impugned order and allowing the appeal.

In conclusion, the Tribunal's decision favored the appellant, emphasizing the distinction between duty payment and inadvertent excess debit of Cenvat credit, supporting the appellant's right to rectify the error through suo moto credit based on legal precedents and the specific circumstances of the case.