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TMI Blog2012 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... such pre-deposited amount - set aside the impugned order and appeal allowed with consequential relief to the appellant - in favour of appellant. - E/2254 OF 2009 - 935 OF 2012 SM (BR) - Dated:- 12-7-2012 - MS. ARCHANA WADHWA, J. Vishwanath Shukla for the Appellant. Sanjay Jain for the Respondent. ORDER 1. The appellants are engaged in the manufacture of iron and steel articles. The dispute arose about availment of credit of Rs. 74,918/- in respect of inputs purchased by the appellant in the month of June, 1999. Proceedings were initiated against the appellant resulting in denial of credit of the said amount as also for confirmation of demand of duty of Rs. 45,388/- and 16,153/-, which was paid by utilising the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be decided is as to whether on success of their appeal, the appellant could take suo-moto credit which was earlier debited by them in terms of Section 35F. It is also undisputed that the appellant before taking the credit informed their jurisdictional Asstt. Commissioner. 4. The lower authorities have relied upon the Larger Bench decision in the case of BDH Industries Ltd. (supra). The said decision was considered by the Tribunal in the case of Ultra Tech Cement Ltd. v. CCE 2010 (261) ELT 696 (Tri. - Bang.) and it was observed that the same is not applicable to identical facts and circumstances in as much as facts of the case before Larger Bench were different. Tribunal took note of the Hon'ble Gujarat High Court's judgement in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larger Bench decision in the case of M/s. BDH Industries Ltd. 2008 (229) E.L.T. 364 (Tri.-LB) would not strictly apply to the facts of the case in as much as the issue of refund of pre-deposit, on success of appeal, was not the issue under consideration before the Larger Bench. As such I find no justification in confirming the said amount. The impugned orders cannot be upheld. The same are accordingly set aside and appeal allowed with consequential relief to the appellant." 5. In as much as there is no dispute about the refund of the amount in question and the appellant had already intimated the Revenue, I find no reasons to deny the re-credit to the appellant. It is also seen that an application was filed by the appellant before Asstt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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