9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (10) TMI 1651 - AT - Central ExciseSuo moto credit - whether the appellant have correctly taken suo moto credit of duty paid twice or not - Held that - decisions of Sopariwala Exports Pvt. Ltd. (2013 (5) TMI 430 - CESTAT AHMEDABAD) wherein on the similar facts, this Tribunal had came to the conclusion that decision of Motorola India Pvt. Ltd. 2006 (7) TMI 223 - HIGH COURT OF KARNATAKA AT BANGALORE was not placed before the Larger Bench of this Tribunal in the case of BDH Industries Ltd. (2008 (7) TMI 78 - CESTAT MUMBAI), therefore the decision of BDH Industries Ltd. (supra) cannot be relied upon and thereafter this Tribunal following the decision of Motorola India Pvt. Ltd. (supra) came to the conclusion that suo moto credit can be taken if duty is paid twice as excess duty paid is not a duty and same is deposit. In these circumstances, as the decision of Sopariwala Exports Pvt. Ltd. (supra) has been delivered by this Tribunal based upon the decision of Hon ble High Court of Karnataka in the case of Motorola India Pvt. Ltd., therefore, I hold that the appellant has correctly taken suo moto credit of the duty paid twice. In these circumstances, impugned order is set aside. - Decided in favour of assessee.
Issues:
- Denial of Cenvat credit taken suo moto by the appellant - Demand of duty with interest and penalty imposed - Interpretation of Section 11B of the Central Excise Act, 1944 - Validity of taking suo moto credit under procedural lapses - Applicability of precedents regarding suo moto credit Analysis: The appellant appealed against an order denying Cenvat credit taken suo moto, resulting in a demand for duty, interest, and a penalty of Rs. 50,000. The appellant, a manufacturer of bearing components, had a situation where the buyer did not accept supplementary invoices issued due to increased raw material costs. Consequently, the appellant took suo moto credit on the duty paid on these invoices. The issue revolved around whether this action was permissible under Section 11B of the Central Excise Act, 1944. The appellant argued that despite no specific provision for suo moto credit under Section 11B, it was a procedural lapse and cited precedents like Sopariwala Exports Pvt. Ltd. and S Subrahmanyan and Co. to support their case. The opposing view, represented by the learned AR, relied on the decision in BDH Industries, which stated that suo moto credit or refund was not allowed. Additionally, the AR referred to the Titwari Sugar Complex case to support the denial of Cenvat credit. The key question before the tribunal was whether the appellant correctly took suo moto credit for duty paid twice. While the AR relied on the BDH Industries case, the appellant's counsel highlighted the Sopariwala Exports Pvt. Ltd. case and argued that the decision in BDH Industries was not conclusive as it did not consider the decision in Motorola India Pvt. Ltd. The tribunal, after considering the arguments, held that the appellant had correctly taken suo moto credit for the duty paid twice, citing the Sopariwala Exports Pvt. Ltd. case and the decision of the Hon'ble High Court of Karnataka in the Motorola India Pvt. Ltd. case. In conclusion, the tribunal set aside the impugned order, allowing the appeal with any consequential relief. The judgment emphasized the permissibility of taking suo moto credit in cases where duty was paid twice, highlighting the importance of procedural requirements and relevant precedents in determining the validity of such actions under the Central Excise Act, 1944.
|
