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TMI Blog2014 (7) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... is bench to show whether the revised credit of Rs. 36,21,542/- taken in September, 2006 was supported by same set of duty paying documents on the basis of which credit was initially taken by the appellant in September, 2005 together with some more documents for the period from October, 2005 to December, 2005. While holding that the appellant could suo-moto take credit in the facts and circumstances of the case for correcting the quantum of admissible service tax credit in view of the decision of the High Court of Madras in the matter of ICMC Corporation Limited Vs. CESTAT, Chennai (2014 (1) TMI 1473 - MADRAS HIGH COURT), and other case laws relied upon by the appellant, the matter is remanded to the adjudicating authority for verificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 was issued to the appellant proposing recovery of Rs. 36,21,542/- along with interest and penalties, as the credit was allegedly taken without support of any duty paying documents and without filing any refund claim. The adjudicating authority confirmed the demand of Rs. 36,21,542/- against the appellant along with interest, and imposed penalty of equivalent amount under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On appeal by the appellant, the Commissioner (Appeals) upheld the Order-in-Original against which the present appeal has been filed. 3. Shri S. S. Gupta, Ld. Chartered Accountant for the appellant, argued as follows: (i) That the appellant had reversed the CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Ahmedabad - [2010 (249) ELT 225 (Tri. Ahmd.)] (ii) That the lower appellate authority has passed adverse order against the appellant by relying upon the case law of BDH Industries Vs. Commissioner of Central Excise (Appeals) - [2008 (229) ELT 364 (Tri. LB)], which has not yet attained finality in view of appeal admitted by the Hon ble High Court of Mumbai as reported in 2009 (240) E.L.T. A143 (Bom.). (iii) The demand of Rs. 36,21,542/- is otherwise time barred, as the show cause notice has been issued after the expiry of two years from the date of taking credit. There is no dispute as to entitlement of CENVAT Credit. There is no willful misstatement or suppression of facts with intent to evade payment of duty or fraud on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 37,47,071/- and Education Cess Rs. 42,608/- (Total Rs. 37,89,679/-), taken in September, 2005, is reversed and revised credit of service tax Rs.35,51,684/- and Education Cess Rs. 69,858/- (Total Rs. 36,21,542/-) for the period from 10.09.2004 to 31.03.2005 and 01.04.2005 to 31.12.2005 is taken. It is observed that there is nothing on record before this bench to show whether the revised credit of Rs. 36,21,542/- taken in September, 2006 was supported by same set of duty paying documents on the basis of which credit was initially taken by the appellant in September, 2005 together with some more documents for the period from October, 2005 to December, 2005. 6. I find that in the case of ICMC Corporation Ltd Vs. CESTAT, Chennai [2014-TI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004, as there is no dispute of the fact that a sum of Rs. 3,21,308/- available as Cenvat credit was in respect of input services, which are given unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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