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TMI Blog2018 (12) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... e-credit could be taken suo moto or a refund claim was required to be filed. Thus under the facts and circumstances of the case no penalty is imposable. The issue is covered by the decision of the Tribunal in the case of Commissioner of Central Excise, Surat-II vs. Vardhman Acrylics Ltd. [2013 (5) TMI 6 - CESTAT AHMEDABAD], where it was held that suo-moto admissible Cenvat credit taken, after getting a favourable decision from the first appellate authority, is correct. Appeal dismissed - decided against Revenue. - Appeal No. E/76956/2017 - FO/76545/2018 - Dated:- 2-5-2018 - Shri P.K. Choudhary, Member (Judicial) Shri K. Choudhury, Suptd. (AR) for the Appellant (s) Shri Pravin Sharma, Advocate for the Respondent (s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in the ER-1 Return and again intimation was given to the Assistant Commissioner and Range Superintendent vide their letter dated 17.01.2013. Show Cause Notice dated Nil was issued alleging contravention of the provisions of Rules 3 and 9 of Cenvat Credit Rules, 2004 and Rule 8 of Central Excise Rules, 2002. The Adjudicating Authority confirmed the demand of ₹ 13,31,116/- alongwith interest and also imposed equal penalty under Rule 15(2) of the Cenvat Credit Rules, 2004. On appeal filed by the assessee, the Ld. Commissioner (Appeals) allowed the appeal. Hence, Revenue is in appeal before the Tribunal. 2. Ld. DR reiterates the grounds of appeal and submits that there is no provision under the Central Excise Act and Rules allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the re-credit could be taken suo moto or a refund claim was required to be filed. Thus under the facts and circumstances of the case no penalty is imposable. 6. I find that the issue is covered by the decision of the Tribunal in the case of Commissioner of Central Excise, Surat-II vs. Vardhman Acrylics Ltd. [2013(292) E.L.T. 558 (Tri.-Ahmd.)]. The relevant portion of the Tribunal s decision are reproduced. 5. The only issue required to be deliberated in this appeal is whether or not respondent can take Cenvat credit suo motu, when the issue of Cenvat credit on merits was decided in their favour by Commissioner (Appeals). Appellantdepartment has relied upon certain judgments in their grounds of appeal as well as during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Mafatlal Industries Limited. case is not applicable to the facts and circumstances of this case, where the issue involved is only taking of an admissible cenvat credit on receipt of a favourable order. 6. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 7. Similarly, in the case of Vighnahar SSK Limited v. CCE, Pune (supra), it was held that refund claim was required to be filed so that the same could pass the test of unjust enrichment. In the instant case, the Cenvat credit was reversed before the issue of show cause notice. It is settled law now that once Cenvat credit taken is reversed than it is considered to be as if no credit is taken. After reversing the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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