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TMI Blog2017 (7) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of Cenvat Credit in the first place i.e. original Cenvat Credit is not contested - appeal allowed - decided in favor of appellant. - E/2214/2012 - A/30740/2017 - Dated:- 31-5-2017 - Mr. M.V. Ravindran, Member(Judicial) Shri B. Venugopal, Advocate for the Appellant. Shri Arun Kumar, Dy. Commissioner/AR for the Respondent. ORDER [Order per: Mr. M.V. Ravindran] 1. This appeal is directed against Order-in-Appeal No.30/2012 (H-III)CE, dt. 09.05.2012. 2. The relevant facts that arise for consideration of this bench are that the appellant herein is manufacturer of coin payphones and other telecommunication equipments. They cleared the goods on payment of appropriate duty and also cleared the goods to Madhya Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my attention to the facts of this case and submit that similar issue various Benches of Tribunals in the cases of Sopariwala Exports Pvt. Ltd. Vs CCE, Vadodara [2013(291)E.L.T. 70 (Tri.-Ahmd)] and in the case of ICMC Corporation Ltd. Vs CESTAT Chennai [2014(302)E.L.T. 45 (Mad.) and STI Industries [20144(302)E.L.T. 433 (Tri.-Ahmd)]; he would also submit that Hon'ble High Court of Allahabad in the case of Krishnav Engineering Ltd. [2016(331) E.L.T. 391 (All.) has upheld the concept of suo moto cenvat credit in these cases. 4. Ld. Departmental representative on the other hand submits that appellant could not have availed suo motu credit of the amount which has been debited by them as they had no documents as per rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken as suo motu credit by the appellant having come to the conclusion that they have paid this duty twice over. The undisputed facts are that the amount which has been paid in the cenvat credit and PLA is over and above the amounts which were debited by them for the consignments which were exported by availing the benefit under Rule 19 of Central Excise Rules, 2002 i.e. that they have executed LUT/Bond with the authorities for clearance of the goods without payment of duty. It undisputed that the appellant is not required to pay any duty on these clearances made by them for export under LUT. At the first blush, I would have to agreed with the submissions made by the Revenue authorities that the judgment of the Larger Bench in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In fact the letter requests the department for correcting the error. This is a simple arithmetical mistake. The departmental authorities could have advised the appellants to adjust the excess amount towards payment of duty for subsequent periods. But they advised the appellants to file a claim for refund. If at all a refund claim is required, the first letter informing the department of the mistake and requesting for permission to rectify the same should be taken as claim for the purpose of Section 11B. Alternatively, the contention of the appellant that the amount paid by mistake is not duty merits consideration. In fact, duty paid on the goods is indicated in the invoices. The amount erroneously paid in excess does not find mention in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel appearing for the assessee. Perused the order of the Tribunal. (d) The Tribunal, after noticing the material facts has chosen to allow the claim on the basis that the amount paid by mistake cannot be termed as duty in the case on hand. The Tribunal also stated that the time bar does not apply in such cases. Somewhat in similar circumstances, the Apex Court in India Cements Ltd. V. Collector of Central Excise - 1989(41)E.L.T. 358 has chosen to accept the case of the assessee. The Madras High Court subsequently noticing the judgment of the Supreme Court has also chosen to hold that the claim is reasonable on the facts of this case. In the light of the case laws, we are of the view that the order of the Tribunal does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2)ELT 45, where in similar circumstances the High Court held that the provisions of Section 11B of the Act was not applicable. We find that the appellant originally availed the Cenvat credit, which was allowed but for various reasons, it reversed the credit. In our view, it is only an account entry reversal and there is no out flow of funds from the side of the appellant which may result in filing an application under section 11B of the Act for claiming refund of duty. Consequently, in our opinion, the provision of Section 11B of the Act is not applicable. Considering the fact that it is only an account entry reversal, we have no hesitation in holding that the Cenvat Credit taken by the appellant by intimating the department vide thei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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