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TMI Blog2017 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... /85432/17/SMB - Dated:- 18-1-2017 - Shri M V Ravindran, Member (Judicial) Shri Mehul Jivani, Chartered Accountant for Appellant Shri V K Shastri, Assistant Commissioner (AR) for Respondent ORDER Per M V Ravindran This appeal is directed against Order-in-Appeal No. PKS/201/BEL/2010 dated 27.07.2010. 2. Heard both sides and perused the records. 3. The issue in this case is the appellants mentioned hereinabove have filed appeal against the Order in Original dated 09.01.2009 passed by the Assistant Commissioner, Central Excise, Wagle-I Division, Mumbai-III Commissionerate whereby he has confirmed the demand of ₹ 88,187/- under Section 11A of the Central Excise Act, 1944 (Act) read with Rule 14 of the CEVAT Credit Rules, 2004 along with interest under Section 11AB of the Act. He has also imposed penalty of ₹ 2,000/- under the provisions of Rule 15 of the said Rules. Briefly, the fact of the case is that the appellants are engaged in the manufacture of excisable goods and on 1st February, 2005, an incidence of fire has taken place in which some of the inputs and raw materials were destroyed. The credit of ₹ 88,187/- involved on such inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Tribunal has held that the deposit made during the investigation as pre-deposit. In that case an amount of ₹ 20 lacs which was given by the appellants during the course of investigation was treated by the Tribunal as pre-deposit for the purpose of entertaining the appeal under Section 35F. However, in the case in hand no such order has been passed by Commissioner (Appeals) treating the said amount as pre-deposit. 7. Further, the judgment relied upon by the appellants in the case of Jindal Vijaynagar Steel Ltd. and Bajaj Auto Ltd. , are mainly on the issue of limitation and as such, not directly applicable in the case in hand. In all case laws relied upon it was seen that in all the cases refund claim was filed whereas, in the present case the appellant had not filed the refund claim, and had taken suo-motu credit in their account. Hence the case laws relied upon by the appellants are not applicable in the present case. 5. I find that the issue is no more res integra and both the lower authorities have passed orders which are not in consonance with the law. 6. Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. [2006 (206) ELT 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a refund application as required under Section 11B of the Central Excise Act, 1944. Thus, according to the Revenue, the amount of ₹ 3,21,308/- being the ineligible service tax credit taken and utilized for payment of duty on the clearance of finished goods attracted once again duty under Rule 14 of the Cenvat Credit Rules, 2004 r/w Section 11A of the Central Excise Act, 1944. The assessee countered this by placing reliance on Rule 6(5) of the Cenvat Credit Rules, 2004 as clarified by the Board. According to the Revenue (sic), it being one of accounted entry reversal alone, there being no factory out flow of funds as by way of payment of duty, the question of going by the provisions under Section 11B of the Central Excise Act, 1944 does not arise. 12. Section 11B of the Central Excise Act, 1944 relates to claim for refund of duty, which reads as under: (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is 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 ₹ 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 the Tribunal in the earlier round of litigation. 14. We do not find any good ground to hold that it was a case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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