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TMI Blog2012 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not found in the show-cause notice, it cannot be said that they travelled beyond the scope of the SCN. Appeal dismissed - decided against appellant. - Appeal No. E/974/2009; Arising out of Order-in-Appeal No. 47/2009 and Stay Order No. 81/2012 - - - Dated:- 3-2-2012 - P.G. Chacko,JJ. For the Appellant : Neetu Jones For the Respondent : M.M. Ravi Rajendran 1. In this appeal filed by the assessee, the short question to be considered is whether, in the facts of this case, it was open to the appellant to take credit suo motu of an amount of ₹ 3,63,242/- in their CENVAT account on the ground that they were not liable to pay duty to such extent on their final product by way of reversal of credit. During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT credit was taken suo motu in March 2008. According to the learned counsel, the impugned order wherein it was noted that the credit was taken suo motu travels beyond the scope of the show-cause notice. In this connection, the learned counsel has claimed support from the judgement in the case of Hindustan Polymers Co. Ltd. vs. CCE Guntur [1999 (106)ELT 12 (SC)]. The learned counsel has laid focus on para-6 of the apex court's judgement. Without prejudice to any of these submissions, the learned counsel has requested for a lenient view in relation to the penalty imposed on the appellant. 3. The learned Dy. Commissioner (A.R.) has heavily relied on BDH Industries (supra) wherein it was held that there was no provision in the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motu taking of credit. There is no reason why the Larger Bench decision could not be applied to the present case. The learned counsel has made an endeavour to distinguish the case of BDH Industries by submitting that the above view was taken by the Larger Bench in the context of deciding whether the refund claim filed by the assessee was barred by unjust enrichment or not. The distinction sought to be drawn by the counsel cannot be appreciated inasmuch as the two issues considered by the Larger Bench were independent of each other. The first issue was whether the assessee was entitled to take suo motu credit of the excess duty paid by them. The second issue was whether the refund claim filed by them was admissible. What is applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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