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2023 (4) TMI 602 - AT - Central ExciseRecovery of the suomotu credit along with proposal for penalty - whether the appellant could suomotu take the credit reversed during the litigation? - HELD THAT - The impugned order under challenge in this matter was passed on 18.10.2012 whereas as per the submission of the appellant that disputed amount of Rs. 65,98,211 was already refunded by the Assistant Commissioner, Central GST, Division X, Vadodara-II, vide Order-In-Original No. 15/Dn-X/NNB/REFUND/19-20 dtd. 11.11.2019. The reversal of entry No. 1109 dtd. 25.03.2011 for filing appeal before the CESTAT in Appeal No. E/595 /2011 against the OIA No. BC/10/SURAT-II/2011 dtd. 08.03.2011 and Reversal of Entry No. 1109 dtd. 25.03.2011 disputed in the present appeal No. E/10141/2013 are same. The matter is remanded to the adjudicating authority to consider these aspects and to decide the matter a fresh after verifying the records /details of the appellant as claimed by them before this tribunal.
Issues involved:
The appeal involves the determination of whether the appellant could suomotu take the credit reversed during the litigation. Detailed Judgment: Issue 1: Reversal of credit and time bar for show cause notice The appellant debited an amount towards inadmissible modvat credit, leading to a show cause notice and subsequent denial of Cenvat Credit. The appellant then took credit without following the principle of unjust enrichment. The department issued a show cause notice for recovery and penalty. The appellant argues that the notice is time-barred as the facts were known to the department during the relevant period. Issue 2: Applicability of Section 11B of the Central Excise Act The appellant contends that duty reversed under protest and re-credited does not attract Section 11B of the Central Excise Act, 1944, thus no refund application was required. The appellant cites various decisions in support of this argument. Issue 3: Remand and fresh consideration The Tribunal found discrepancies in the dates of the impugned order and the refund made by the Assistant Commissioner. The matter was remanded to the adjudicating authority for fresh consideration, emphasizing the need for verification of records and allowing the appellant to present their case. The Tribunal set aside the impugned order, remanding the matter back to the Commissioner for a fresh decision while ensuring the principles of natural justice are followed. All issues remain open for consideration.
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