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TMI Blog2015 (2) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the amount lying to their credit in the deemed credit register after having succeeded before the Commissioner (Appeals). The respondents appear to be harbouring in misconception that there has to be some provision under which the petitioner can take benefit of the refund only after seeking permission of the authority whose order has been set aside by the Commissioner (appeals)". The Learned Authorised Representative attempted to distinguish the decision of the Hon’ble Gujarat High Court in the case of Shree Shyam Textile Mills [2004 (6) TMI 590 - GUJARAT HIGH COURT] in so far as the said case was related to deemed credit. In my view, there is no much difference as the deemed credit register and cenvat account, both are under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dtd 4.9.2008 was issued proposing the cenvat credit to the tune of ₹ 31,93,212/- taken suo moto of NCCD paid on captive consumption stage during the period April 2006 to December 2006 should not be disallowed as provided under Section 11B of the Central Excise Tariff Act 1944 alongwith interest and penalty. The Adjudicating Authority disallowed the Cenvat Credit of ₹ 31,93,212/- alongwith interest and imposed a penalty of ₹ 30,000/- on the respondent. By the impugned order the Commissioner (Appeals) set aside the adjudication order and allowed the appeal filed by the respondent. Hence, Revenue filed this appeal against the impugned order. 3. The Learned Authorised Representative for the Revenue submits that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for availing consequential benefit of the order. He also filed written submission alongwith copy of various case laws. 5. After hearing both the sides and on perusal of records, it is seen that the Show Cause Notices were issued proposing demand of NCCD of ₹ 31,93,212/- for the period from April 2006 to December 2006 on the ground that the respondents had not paid NCCD for the captive consumption. The respondents contested the demand of duty and also paid amount under protest from cenvat account. The Adjudicating Authority confirmed the demand of NCCD which was set aside by the Commissioner (Appeals). It is contended that the Commissioner (Appeals) allowed the appeal with consequential relief. The respondent re-credited the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o their credit in the deemed credit register after having succeeded before the Commissioner (Appeals). The respondents appear to be harbouring in misconception that there has to be some provision under which the petitioner can take benefit of the refund only after seeking permission of the authority whose order has been set aside by the Commissioner (appeals) 7. In the present case, I find that earlier, a proceeding was initiated on the ground that they have not paid NCCD on captive consumption and the respondent reversed the amount from cenvat account under protest. The Commissioner (Appeal), set aside the adjudication order and allowed the appeal with consequential relief. So, the respondents took suo moto credit on the basis of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch refund claim is filed, is not passed on to the customers. In the present case, the issue is not regarding refund of duties but taking of admissible credit, which was earlier reversed under protest and on receipt of a favourable order from the first appellate authority. Therefore, the judgment of the Hon ble Supreme Court in the case of Mafatlal Industries Limited (supra) was only with respect to all those refund claims where unjust enrichment has to be examined. Such refund claims will mean cash refunds or where duty is paid at the time of clearance. It is a settled law now that unjust enrichment is not applicable where refund is that of penalties or pre-deposits made in the appellate proceedings. Therefore, judgment of Hon ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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