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TMI Blog2019 (7) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... twice, the excess amount is not a tax but has to be considered as deposit. It is further observed that the revenue itself did not treat the amount paid thru cenvat as service tax as the respondent was insisted to pay in cash. Accordingly, once the revenue discarded the payment thru cenvat as service tax and got the equal amount deposited from respondent thru cash, the amount initial utilised from cenvat amount stand re-creditable to the respondent. The Appellant s suo moto availment of credit cannot be found fault with - Appeal dismissed - decided against Revenue. - Excise Appeal No. 1265 of 2010 - FINAL ORDER NO. A/11067/2019 - Dated:- 5-7-2019 - MEMBER (JUDICIAL), MR. RAMESH NAIR AND MEMBER (TECHNICAL), MR. RAJU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot complied with the relevant provisions of law, however he failed to specify the provisions of Central Act and Rules which has been complied with by the Respondents. There is no provision of taking suo moto credit as held by Larger Bench of Tribunal in case of BDH Inds. Ltd. 2008 (229) ELT 364 (TRI LB). 3. The Ld. AR Shri L. Patra reiterates grounds of appeal, he has also relied upon the judgment in case of Garden Silk Mills Ltd. 2017 (350) ELT 302 (TRI). 4. Sh. K.I. Vyas with Sh. Raj Vyas Ld. Counsel appearing for the Respondent submits that service tax on GTA Services was paid by them from cenvat which was not allowed and hence they paid the amount in cash and hence they availed suo moto credit. He submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of a letter dated 12-6-2001. The authorities directed the respondent to file a refund claim. Another letter was submitted by the assessee stating therein that there was an error committed in the matter. Subsequently, a refund application was also filed by the assessee. Claim was rejected on the ground of lapse of time by the Assistant Commissioner. The same was confirmed by the Appellate Commissioner. Aggrieved by the same, the assessee moved the Tribunal. The Tribunal accepted the case of the assessee. It is in these circumstances, the Revenue is before us. 3 . Heard Shri Bhaskar, learned Counsel appearing for the Revenue and Smt. Padmini Sudaram, learned Counsel appearing for the assessee. Perused the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in this case the period in dispute March, 2006 to March, 2007 and CBEC has issued this Circular only on 23-8-2007 which is after the period in dispute. Therefore, the said circular have no relevance to the facts of this case. Further, I am not going into the issue that whether the appellant is entitled to avail cenvat credit account for payment of output transportation service during the impugned period or not. But the issue before me is that as the appellant has paid service tax on output transportation service twice : (a) by utilizing cenvat credit account; and (b) by payment in cash.In those circumstances, whether the appellant is entitled to take suo motu credit of duty paid twice or not. 8. The said issue came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit can be taken in case of duty has been paid twice, which decision was delivered on 19-7-2006 and the said decision was not considered by the Larger Bench of this Tribunal in the BDH Industries Ltd. (Supra) which was delivered on 9-7-2008. Therefore, the decision of Larger Bench is per incuriam to the decision in or of Motorola India Pvt. Ltd (supra). Further, the issue has been examined by the Hon ble Gujarat High Court in the case of S. Subramanyan Co. (supra) also wherein the Hon ble High Court affirmed the order of this Tribunal wherein this tribunal said that the suo motu credit can be taken by the assessee of duty paid twice or excess. In this case, it is not in dispute that appellant has paid service tax by availing cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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