2018 (7) TMI 607 - AT - Central Excise

Denial of suo moto credit availed - duty paid on supplementary invoice due to price escalation clause - buyer refused to pay - case of Revenue is that the Appellant is not entitled to take suo moto credit but they are required to file refund claim of duty paid on supplementary invoices - Held that - An identical issue came up before this Tribunal in the case of Pushp Enterprises vs. CCE, Jaipur I 2015 (10) TMI 1651 - CESTAT DELHI , where it was held that suo moto credit can be taken if duty is paid twice as excess duty paid is not a duty and same is deposit. The Appellant is not required to file refund claim and suo moto credit taken by the Appellant is correct - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against denial of suo moto Cenvat credit taken by the Appellant.

Analysis:
The Appellant appealed against an order denying suo moto Cenvat credit they had taken. The case involved the Appellant clearing goods and paying duty, subsequently raising supplementary invoices due to an escalation in goods' prices. The buyer did not agree with the price increase, leading to the Appellant debiting duty in their Cenvat credit account. The Appellant then took suo moto credit of the duty debited, which was later found during an audit to be not entitled. A Show Cause Notice was issued for the reversal of this credit. The matter was adjudicated, concluding that the Appellant should file a refund claim for the duty paid on supplementary invoices instead of taking suo moto credit. The Appellant contested this decision.

The Tribunal considered the submissions and records, noting a similar case involving Pushp Enterprises vs. CCE, Jaipur I. In that case, the appellant had also taken suo moto credit on duty paid on supplementary invoices. The Tribunal analyzed conflicting decisions, with the Appellant's counsel citing a case where it was concluded that suo moto credit can be taken if duty is paid twice. Based on this precedent, the Tribunal held that the Appellant had correctly taken the suo moto credit in this case as well. It was emphasized that the Appellant was not required to file a refund claim, and the suo moto credit taken was deemed correct.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal, providing for consequential relief if necessary. The decision was based on the established principle that the Appellant had correctly taken the suo moto credit of duty paid twice, aligning with previous Tribunal rulings.