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TMI Blog2018 (7) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... - MO/75047/2018 - Dated:- 16-2-2018 - Shri P.K. Choudhary, Member (Judicial) Shri Arvind Baheti , C.A. for the Applicant (s) Shri S.S. Chattopadhyay Suptd. (AR) for the Respondent (s) ORDER Per Shri P.K. Choudhary 1. The applicant filed the Misc. Application for Rectification of Mistake in Final Order No. 78713/2017 dated 27.12.2017 passed by this Tribunal. For the purpose of proper appreciation of the case, the relevant portion of the said order dated 27.12.2017 is reproduced below: 3. On perusal of the records, I find that the commissioner of Central Excise, by order dated 19.07.2004, disallowed the Cenvat Credit of ₹ 36,08,060/-. Subsequently, the assessee reversed the credit in terms of the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Application for ROM. 3. The main contention of the Ld. Counsel on behalf of the applicant is that the Tribunal while passing the order failed to consider the following High Court and Tribunal decisions as referred to by them; i) ICMC Corporation Ltd. vs. CESTAT, Chennai [2014(302) E.L.T. 45(Mad.)] ii) Coromandal Fertilizers Ltd. vs. Commissioner of C.Ex. (A), Visakhapatnam-IV [2009(239) E.L.T. 99 (Trio-Bang.)] In the case of ICMC Corporation Ltd. (Supra) allegations of the Revenue is that the assessee had not maintained a separate account in respect of input services. Thus, there was demand of ₹ 1,29,09,031/- being 10% of the value of exempted goods cleared during the period September, 2004 February, 2006. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit in terms of Order dated 19.07.2004, again suo motu took the credit on 21.05.2007 on the basis of the invoices issued in the year 2000-2001 as the goods were returned to the manufacturing premises, It is seen from the records that by the purported show cause notice dated 30805.2008, which is the subject matter of the present proceedings, the facts are enumerated as below: Brief facts of the case 1. Vide a letter dated April, 20th, 2007 (copy enclosed marked Annexure-A) the said assessee submitted a list of invoices in respect of one of their raw material, H.R,Coil, which they claimed to have used in their factory receiving back the same from the job worker after necessary job work, for which they had not taken credit til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal against the Order-in-Original before the appropriate authority. 5. I find that the matter was adjudicated vide Order dated 19.07.2004. No appeal was filed by the assessee against the said Order. In such situation, the assessee cannot take suo motu credit as the Order dated 19.07.2004 is in force in the eye of law. The other aspect of the case is that the assessee took the credit after a long delay even after the adjudication proceedings. The Larger Bench of the Tribunal in the case of BDH Industries Ltd. vs. Commr. Of C.Ex.(Appeals), Mumbai-I [2008(229) E.L.T. 364 (Tri.-LB)] held that there is no provision under the Central Excise Act and the Rules allowing suo motu taking of credit or refund without the sanction of the Proper O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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