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TMI Blog2017 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-11-2017 - Mr Ashok Jindal, Member ( Judicial ) For the Appellant : Shri Shailesh Vyas, Advocate For the Respondent : Shri A Mishra, Authorised Representative ORDER Per : Mr Ashok Jindal, The appellant is in appeal against the impugned order wherein suo moto credit has been taken by the appellant has been disputed by the Revenue and the sought to be recovered from the appellant. 2. The facts of the case are that in the month of August 2008, the appellant cleared goods to one M/s Essar Construction Co Ltd located in the SEZ area. As the appellant was not required to pay Service Tax on the services provided to a unit located in SEZ area, inadvertently paid the Service Tax. In the subsequent month, as no Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by me in the case of BDH Industries Limited, sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the and credit was taken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. I find that the law as has been decided by the Larger Bench seems to be incorrect on the face of the fact that the judgment of the Tribunal in Motorola India Pvt. Limited was carried in appeal before the Hon ble High Court of Karnataka and their Lordships have upheld the said order. It is seen from the case of BDH Industries Limited that the said judgment of the Hon ble High Court of Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim for the excess amount paid on account of clerical error is unjust. In the peculiar facts and circumstances of the case, we allow the appeal with consequential relief. 11. Aggrieved by such an order of the Division Bench of the Tribunal, Revenue preferred appeal before the Hon ble High Court of Karnataka, wherein their Lordships have passed the following order :- [Judgment]. - Revenue is before us aggrieved by the order dated 1-9-2005 passed in appeal No. E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. 2. The respondent-assessee by mistake debited an amount of ₹ 1,58,099/- in excess of the duty payable in their PLA/CENVAT account for the month of March 2001. The same was brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. No question of law arises. The order is based on the law laid down by the Apex Court. 12. It can be seen from the above reproduced portion of the Tribunal's order as well as the Hon ble High Court's order, that the facts of the case in Motorola India Pvt. Limited is identical to the facts as is in the case before me. In my view, as no contrary judgment of any other High Court to the decision of the Hon ble High Court of Karnataka in the case of Motorola India Pvt. Limited is brought to my notice, I find that the judgment of Motorola India Pvt. Limited will hold the field and the Larger Bench decision in the case of BDH Industries being a decision of the Tribunal, shall have no binding effect. 13. Accordingly, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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