2009 (5) TMI 603

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..... refund application was filed on 8-1-2007 from the date of reversal on 8-12-2006 cannot be held to be barred by limitation.
Ms. Archana Wadhwa, J. REPRESENTED BY : Shri V.S. Sejpal, Advocate, for the Appellant. Shri S.R. Prasad, SDR, for the Respondent. [Order]. - I have heard both the sides duly represented by Shri V.S. Sejpal, learned advocate and Shri S.R. Prasad, learned SDR. As per facts on record, the appellant paid the service tax on GTA services out of the accumulated Cenvat credit availed on input services, during the period March 2005 to November 2005. However, they were informed by their Jurisdictional Central Excise Authorities on 5-1-2006 that such payment of GTA service tax cannot be paid from the Cenvat credit account .....

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..... ating the submissions made by both the sides I find during the period March 2005 to November 2005, Cenvat credit of input services was utilised by the appellant for discharge of service tax on GTA services availed by them. Such utilization of credit was objected to by the Central Excise Officers and accordingly the appellant paid the duty in cash and reversed the entries made during the said period in this Cenvat account. Such reversal of entry was not objected to by the authorities till the audit raised an objection. Accordingly, the appellant reversed re-credit entry on 8-12-2006 and filed the refund claim on 8-1-2007. In this scenario, it can be safely concluded that the claim filed on 8-1-2007 was for refund of the amount debited on 8-1 .....

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..... 2005 through Cenvat account since tax is payable only once for the service received or provided one time under the Service Tax Act". Admittedly the appellants have paid the duty twice and the denial of the credit would be unjust. The learned DR's reliance on the Larger Bench decision of the Tribunal in the case of BDH Industries Ltd. v. Commissioner of C.Ex., Mumbai reported in 2008 (229) E.L.T. 364 (Tri.-LB) laying down that there is no provision of suo-motto taking of refund will not apply to the facts of the present case inasmuch as I have already held that the refund application was filed on 8-1-2007 from the date of reversal on 8-12-2006 cannot be held to be barred by limitation. 7. In view of the above I set aside the impugned o .....

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