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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 ..... osing demand of National Calamity Contingent Duty (NCCD) of Rs. 31,93,212.00 for the period April 2006 to December 2006 on the ground that NCCD was not duty of Excise and not covered under Notification No 67/95-CE and liable to pay duty on POY and FDY for captively used in the manufacture of exempted final product. The respondent contested the demand of duty in respect of both the Show Cause Notice, as well as they paid the amount under protest from their Cenvat account. The Adjudicating Authority confirmed the demand of duty. By OIA No 28 to 29/2008(Ahd-1)CE/ID/Commr(A) dtd 29.3.2008 the Commissioner (Appeals) set aside the adjudication order and allowed the appeal with consequential reliefs. 2. As per order of the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit. It is submitted that the Hon'ble Supreme Court in the case of UOI vs Solar Pesticides Pvt Ltd 2000(116)ELT.401(SC) has held that unjust enrichment is applicable even in the captive consumption. 4. On the other hand, the Learned Consultant for the respondent submits that the respondent had re-credited the amount in their cenvat account on the basis of the order of the Commissioner (Appeals), where the appeals were allowed with consequential relief. It is submitted that the respondents had reversed cenvat credit under protest and again taken suo moto credit. It is a case of deposit during the proceedings and therefore unjust enrichment would not be applicable. He submits on the identical situation the Hon'ble Gujarat H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) re-credited the amount of refund in its deemed credit register. A Show Cause Notice was issued to the assessee to show cause as to why the credit availed and utilised by the assessee should not be disallowed and recovered with interest and penalty, which was challenged before the Hon'ble High Court. The stand taken by the revenue is that merely on the basis of the order of the appellate authority, the assessee could not have suo moto utilised the amount lying in the register. There is also no provisions for such suo moto refund. The Hon'ble High Court quashed and set aside the show cause notice. The relevant portion of the said decision is reproduced below: &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this appeal is whether or not respondent can take Cenvat credit suo motu, when the issue of Cenvat credit on merits was decided in their favour by Commissioner (Appeals). Appellant-department has relied upon certain judgments in their grounds of appeal as well as during the course of hearing and emphasized that suo motu credit is not permissible and the same could have been taken by following the refund procedure under Section 11B of the Central Excise Act, 1944. It is observed that the earliest of the relied upon judgments is that of the Hon'ble Supreme Court in the case of Mafatlal Industries Limited. v. UOI [1997 (89) E.L.T. 247 (S.C.)] which was delivered in relation to the amendment made in 1991 to introduce the concept of unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of BDH Industries Ltd (Supra). I find that the Division Bench of the Tribunal in the case of Vardhman Acrylic Ltd (Supra) had already considered the decisions of the Larger Bench of the Tribunal and the decision of the Hon'ble Supreme Court. The decision of the Division Bench on the identical issue is binding in the Single Member Bench. The Learned Authorised Representative attempted to distinguish the decision of the Hon'ble Gujarat High Court in the case of Shree Shyam Textile Mills (supra) 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 Cenvat Credit Rules. 9. In view of the above discussions, I upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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