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TMI Blog2012 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to the period 1-9-2004 to 9-9-2004. The refund of the same is required to be considered in terms of Section 11B of the Central Excise Act, 1944 as made applicable to the service tax cases - appellants have filed a refund claim within the time-limit on 13-12-2006, the same requires to be considered by the original authority - appeal is allowed - E/57/2011 - 1164/2011 - Dated:- 11-10-2011 - Dr. Chittaranjan Satapathy, J. REPRESENTED BY : Shri Hari Radhakrishnan, Advocate, for the Appellant. Shri A.B. Niranjan Babu, SDR, for the Respondent. [Order]. Heard both sides. The relevant dates and events in respect of this case are as follows :- Dates and Events Sl. No. Date Event 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le phones has been clarified vide Master Circular on Procedural issues relating to service tax bearing Circular No. 97/8/2007-S.T., dated 23-8-2007 in F. No. 137/85/2007-CX.4 in para 8.3 that with effect from 10-9-2004 credit of service tax paid in respect of mobile telephone service is admissible, provided the mobile phone is used for providing output service or used in or in relation to manufacture of finished goods. 2. The learned advocate, Shri Hari Radhakrishnan states that in this case, reversal of the service tax credit was done at the insistence of the departmental officers as there was an audit objection based on the department s circular, dated 20-6-2003. However, the said circular was not applicable with effect from 10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty was paid and the suo motu credit was taken by the assessee and the Tribunal held that taking of the suo motu credit in that case amounted to taking a refund of excess duty which could not be taken without filing a refund claim under Section 11B and without satisfying the authorities that the burden of excess duty has not been passed on to the customers. 6. However, I find that the present case is quite different. This is a case where the appellants had taken credit of service tax paid on Mobile Phones for the period from Sept. 04 to Nov. 05. This was not a case of making any excess payment of duty but reversal of credit when an audit objection was raised that the appellants are not entitled to CENVAT credit on Mobile Phones based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty and the appellants were not entitled to take credit of the same. This position is also admitted by the learned advocate who has undertaken to ensure that the amount would be paid back within a month from today. 8. As regards the interest amount paid by the appellants, the same amounts to excess payment except to the extent it relates to the period 1-9-2004 to 9-9-2004. The refund of the same is required to be considered in terms of Section 11B of the Central Excise Act, 1944 as made applicable to the service tax cases. In view of the fact that the appellants have filed a refund claim within the time-limit on 13-12-2006, the same requires to be considered by the original authority. 9. In view of the above finding, I set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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