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TMI Blog2015 (10) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 and according to the provisions of Rule 8 (3A) of the Central Excise Rules, they were required to pay the duty by cash instead of PLA and was not allowed to utilise the Cenvat credit. However, the appellant paid the duty by debiting the Cenvat Credit for the month of April Rs. 97,467/- + in May Rs. 36,895/- and in June Rs. 46,994/- totalling to Rs. 1,81,356/-. It is an admitted fact that on being so pointed out and are being advised, the appellant again paid the said amount of Rs. 1,81,356/-with interest by separate challans on 24/09/2007 and on 01/10/2007. Thereafter the appellant filed a refund claim on 12/05/2008 claiming the refund of amount earlier paid by way of debit to Cenvat account. 3. A show-cause notice dated 21/08/2008 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islead the department, that the refund claim has been admitted and also on the ground that part of the claim for the amount of Rs. 97,467/- being the tax paid for the month of April 2007, appeared to be time barred. 5. The show-cause notice was adjudicated vide order-in-original dated 12/05/2009. After considering the submissions of the appellant and their reply to show-cause notice, so far the contention of the appellant that the mischief was committed by the Excise clerk who have committed fraud with the company (appellant) which resulted in the default in the monthly payment and the aforesaid letter was fabricated by the said employee by way of attempt to safe guard himself. The appellant is not aware and not involved in obtaining and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total payment (in cash) as in the present case, the assessee is entitled to take suo motu credit of the amount earlier debited in Cenvat account. The appellant relies on the ruling of this Tribunal in the case of CCE Chandigarh Vs. Ralison Carbon Black Ltd., - 2008 (229) ELT 113 (Tri-Del) wherein the case of default in monthly payment, facility to pay by Cenvat credit under Rule 8 (3A) of Central Excise Rules, 2002 was restricted, whereas the credit utilised was earned during subsequent period. Demand in cash was sustainable and it was further held that assessee is entitled to take Cenvat credit of the corresponding amount paid earlier through Cenvat account. The appellant also relies on the ruling of the Honble Madras High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 as it existed during the relevant period viz., 2004-2006 getting the reversal of the entry is in tune with its stand taken, which was accepted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept does not arise at all for the assessee to go by Section 11B of the Central Excise Act, 1944. 17. In the circumstances, we set aside the order of the? Tribunal and allow the appeal filed by the assessee and hold that legally speaking there is no impediment in the assessee taking suo motu credit of the sum of Rs. 3,21,308/-. In the light of the above, we allow the appeal. 7. Learned Counsel further submitted that the assessee could have been even taken suo motu credit on the second payment made through PLA of the earlier amount debited to Cenvat Credit instead of filing the refund claim as held by the Hon'ble High Court. The appellant also relies on the ruling of the Hon'ble Madras High Court in the case of Natraj & Venkat Associates V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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