9911796707
TMI Blog2019 (4) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee as well as the Department. Thus rectification has to be carried out in full - By sitting tight on the repeated request of the assessee to take back the Cenvat Credit was unjust and unfair under the facts and circumstances. The SCN is misconceived and an abuse of the provisions of the scheme of the Central Excise Act and the Rules - Appeal dismissed - decided against Revenue. - Appeal Nos. E/50503-50504/2014-EX[SM] - Final Order Nos 70701-70702/2019 - Dated:- 23-4-2019 - Mr. Anil Choudhary, Member (Judicial) Shri Gyanendra Kumar Tripathi (AC) AR for Appellant Shri V.S. Negi (Advocate) for Respondent ORDER Per: Anil Choudhary The issue in these appeals by Revenue against the respondent company a manufacture of tyres for auto mobiles and also against the Director Shri M.L. Dhawan is against Order-in-Appeal upholding the taking of suo-motu credit under the facts and circumstances of this case. 2. The brief facts of the case are that the respondent company have got one unit at Industrial Area, Sahibabad, Ghaziabad and they have another unit at Baddi, HP. At the Baddi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part-II register. Thereafter, in absence of any further response from the Revenue, the respondent-assessee under intimation dated 17 March, 2011, to the Range Superintendent at Ghaziabad, informed that on the said date they have taken the credit of the said amount of ₹ 13,18,771/-. In their Cenvat account vide entry number 771 dated 17 March, 2011, in RG-23A Part II. Upon taking of this credit the same was objected to by Revenue by letter dated 3 November, 2011, and in reply by letter dated 23 November, 2011, the appellant intimated that as the duty was paid by mistake and rebate was claimed, and by way of rectification they have paid back the rebate alongwith interest. Accordingly, they were also entitled to take back the credit and further there is no objection by the Revenue in spite of several letters written, the credit taken cannot be objected too. 3. Thereafter Revenue issued show cause notice dated 19 March, 2012, objecting to the taking of suo-motu credit of ₹ 13,18,771/- proposing to demand the same back alongwith proposal for penalty against the respondent company and its Director Shri M.L. Dhawan. 4. The show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of the duty already paid through Cenvat account, the appellants took re-credit of such Cenvat credit in their Cenvat account which prompted the department to not only to deny the rebate amount sanctioned and paid back by the appellants in cash but also to deny and recover the Cenvat credit taken suomotu invoking penal provision by issuing the SCN dated 19.03.2012. The issuance of demand belatedly on 19.03.2012 on the rebate amount of ₹ 13,18,771/- already deposited by the appellants on 13.08.2010 cannot be justified and is not sustainable in as much as the extended period of limitation in the instant case is not invokable in view of the fact that the said erroneous rebate amount was paid back by the appellants on the instance of the department . Also the ingredients of suppression cannot be applied when once the appellants have complied with the directions of the department by depositing the erroneous rebate amount. Section 11A(2) of the Central Excise Act, 1944 provides that no SCN is required to be issued where the person who has paid the duty under clause (b) of sub-Section (1) has informed the Central Excise Officer of such payment. The Circular No. 423/56/98-CX dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit without applying for refund, when excess duty was paid. The conflict of views entailed the following reference to a Larger Bench of the Tribunal:- If an assessee avails suomotu credit of the amount of duty paid in excess by him, whether the view taken by the Tribunal in the case of Comfit Sanitary Napkins (I) Pvt. Ltd. 2004 (174) ELT 220 will apply or the vies taken by the Tribunal in the case of Motorola India Pvt. Ltd. 2006 (193) ELT 468 (Tri.) = 2007 (7) STR. 613 (Tri.) = 2005 (71) RLT 334 will apply . The Tribunal answered the reference holding that all types of refund have to be filed under the Central Excise Act and Rules made thereunder and no suomotu credit of the duty paid in excess may be taken by the assessed. We find that the ration of the BDH Industries Ltd. case relates to excess duty paid and the procedure to be followed for getting back such excess duty paid. Ratio of that case does not apply to the subject case. The Apex Court in the case of M/s. Belapur Sugar Allied Ind. Ltd. v. CCE, Aurangabad {1999 (108) ELT 0009 (S.C.)} has specifically held that Even if duty is paid under ignorance of law or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER The appeals of the appellants are hereby allowed with consequential benefits. 6. Being aggrieved the Revenue have filed appeals before the Tribunal against the company and its director. The appeal against director have also been wrongly registered by the Registry of this Tribunal in the name of the company itself, as is evident from the order sheet due to improper mentioning of the parties by the appellant-Revenue. 7. Heard the parties. 8. I find that the only ground of Revenue is that in view of the ruling of Larger Bench in the case of BDH Industries Ltd. vs. CCE 2008 (229) ELT 364 (Tri.- LB) wherein this Tribunal held that all types of refunds have to be filed under Central Excise Act and Rules made thereunder and no suo-motu credit of the duty paid in excess may be taken by the assessee. In the BDH case the assessee had by mistake debited an amount of ₹ 1,58,098/- in excess in the PLA/Cenvat account in the month of March, 2001, and thereafter ask the permission of Department to take credit of the amount paid by mistaken. The Department however advised him to file a refund claim. The appellant hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
