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TMI Blog2011 (11) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the department. Once the department refused to consider the request for issue of certificate, the reversal made was not necessary and therefore, requiring the appellant to file refund claim for this also is not necessary, since it was only a temporary reversal pending removal of the raw materials. Since the removal of the raw material did not take place, reversal itself was not necessary and therefore, subsequent re-credit is nothing but a rectification entry or an entry reversing the temporary reversal made earlier - appellant need not to file refund claim and suo motu credit taken by them is in order - Decided in favour of assessee. - E/732/2010 - Final Order No. A/1995/2011-WZB/AHD - Dated:- 15-11-2011 - Shri B.S.V. Murthy, Membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable to this case, in view of the fact that in BDH Industries case, the Tribunal was considering the debits made by the appellants for payment of duty wrongly and re-credit of the same subsequently. He submitted that in that case the debit was made for payment of duty and once the debit is made for payment of duty, the question of examining unjust enrichment would arise and if suo motu credit is taken, such examination would not be possible and therefore, Tribunal took the view that a refund claim is to be filed. In the present case, he submitted that there was no removal of any goods, either inputs or finished goods and reversal was made in anticipation of issue of certificate and when the certificate was not issued, re-credit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant decided that they would not export the goods before 28-2-2007 and decided not to seek a certificate, they would not have debited Cenvat credit account at all. This is because, the system of consignment-wise debit entry in PLA and RG23 no longer exists and assessees are making one debit entry in PLA and one debit entry in RG23 once in a month for payment of duty. In such an event, appellant could have adjusted reversal by themselves. In this case, the problem has arisen only because the appellant has approached the Revenue for a certificate and for that purpose made the reversal entry in the account and subsequently took the Cenvat credit. If the decision to reverse the credit and taking back the credit during the month by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of the duty paid in excess may be taken by the assessee. The matter is now sent back to the referral bench for passing appropriate orders on the appeal before it. 5. The conclusion of the Tribunal is that no suo motu credit of the duty paid in excess may be taken by the assessee. The question of excess credit would arise when there is requirement of payment of duty. In this case there was only a proposal to remove the goods and to support the proposal and to get the certificate, reversal was made. It would mean that the reversal was pending consideration of the request by the department. Once the department refused to consider the request for issue of certificate, the reversal made was not necessary and therefore, requiring the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings taken back. In this case also, the appellant intended to remove the goods and therefore reversed the credit, approached the department for issue a certificate and when certificate was denied and appellant decided not to remove the goods, took back the credit. It is nobody s case that raw material was removed without reversing the credit or appellant is not eligible for the amount taken back as credit by them. The objection is in fact, procedural. As submitted by the learned counsel, question of unjust enrichment also would not arise in this case. 6. I find that facts and circumstances in this case which are somewhat peculiar, in my opinion, do not require the appellant to file refund claim and suo motu credit taken by them is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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