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TMI Blog2015 (6) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... E/50560/2014 - Final Order No. A/51011/2015-SM(BR), - Dated:- 25-3-2015 - Ashok Jindal, Member (J),J. For the Petitioner : Shri K K Anand, Adv. For the Respondent : Shri D Singh, DR ORDER Per: Ashok Jindal: The appellant is in appeal against the impugned order wherein the suo moto credit taken has been denied both the lower authorities. 2. The facts of the case are that during the period March, 2005 to March, 2006, the appellant utilized their cenvat credit amount for payment of output transportation service. As there was a Circular No. 97/08/2007 dated 23.08.2007 which directs that on output transportation service the service tax is to be paid in cash. But, the appellant utilized cenvat credit account for payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Vs S. Subramanyan Co.-2013 (296) ELT A 123 (Gujarat), Sopariwala Exports Pvt. Ltd. Vs CCE, Vadodra-I-2013 (292) ELT 70 (Tri. Ahmd), CCE, Bangalore-III Vs Motorola India Pvt. Ltd.-2006 (206) ELT 90 (Kar.). He also submits that the Larger Bench decision of this Tribunal in the case of BDH industries Ltd. Vs CCE(Appeals), Mumbai-I-2008 (229) ELT 364 (Tri.-LB) in the said case this Tribunal has not considered the decisions of the Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (supra). Therefore, he prayed that issue is no more res integra and impugned order be set aside. 4. On the other hand, Ld. AR opposed the contention of the Ld. Counsel and submits that as per CBEC circular no. 97/8/2007, it is a cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit was not allowed. Against the rejection of appeal by the Commissioner (Appeal) vide OIA dated 27.11.2012, the appellants should have filed an appeal before the Tribunal and they might have done so. Rather than enforcing the OIA issued by the Commissioner (Appeal), the Addll. Commissioner issued another show cause notice questioning suo moto re-credit under C.No V.925 Adj-I/JPR-11/242/2012/2127 dated 24.08.2012 and adjudicated the same under OIO No. 10/2012 what is subjected matter of the appeal. It is obvious from the factual matrix constructed about that soon after getting OIA dated 27.11.2012 the appellants' should have paid back the re-credit taken suo moto and filed proper refund claim or filed appeal against the OIA. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute. Therefore, the said circular have no relevance to the facts of this case. Further, I am not going into the issue that whether the appellant is entitled to avail cenvat credit account for payment of output transportation service during the impugned period or not. But the issue before me is that as the appellant has paid service tax on output transportation service twice: (a) by utilizing cenvat credit account and (b) by payment in cash. In those circumstances, whether the appellant is entitled to take suo moto credit of duty paid twice or not. 8. The said issue came up before this Tribunal in the case of Esdee Paints Ltd. (supra) wherein this Tribunal has observed as under: Admittedly during the relevant period the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (Supra) which was delivered on 09.07.2008. Therefore, the decision of Larger Bench is per in currien to the decision Motorola India Pvt. Ltd (supra). Further, the issued has been examined by the Hon'ble Gujarat High Court in the case of S. Subramanyan Co, (supra) also where in the Hon'ble High Court affirmed the order of this Tribunal wherein this tribunal said that the suo moto credit can be taken by the assessee of duty paid twice or excess. In this case, it is not in dispute that appellant has paid service tax by availing cenvat credit as well as in cash. Therefore, the following decision of the Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (supra) and as S. Subramanyan Co. (supra) of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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