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TMI Blog2020 (2) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... to seek restoration of CENVAT Credit under the CESTAT Rules? (ii) Is the Customs, Excise and Service Tax Appellate Tribunal, Chennai correct in holding that the appellant is barred from seeking restoration of CENVAT Credit though their application was for refund of duty paid by reversal of credit? (iii) Is the Customs, Excise and Service Tax Appellate Tribunal, Chennai correct in holding that "contention of the appellant that the sale has not taken place does not find favour with them", when the rectified invoices were rejected by the job workers?" 3.The case of the Assessee is that the Assessee had sent the materials in question to the Job workers M/s.Tenhnical Stampings Automative Limited and M/s.Neel Industries Limited on Delivery Challan under Notification No.214/86. With the introduction of Tamil Nadu Value Added Tax with effect from 01.01.2007, the Assessee changed the materials procurement policy from 'Job Work' to 'Outright Sale/Purchase' with their Vendors. When the Sale Invoices were issued for the materials removed as such on Job Work basis by reversing the Cenvat Credit availed. In other words, by debiting the Cenvat account instead of actual payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person :" 9.The Coordinate Bench of Madras High Court in the case of ICMC Corporation Ltd. Vs. CESTAT, Chennai [2014 (302) E.L.T. 45 (Mad.) held as under: "13. We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat Credit on service tax for discharging its liability. However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eversed these Cenvat credit entries and debited the said amount in its books but subsequently, realised that they were eligible for Cenvat credit, inasmuch as furnace oil was an input as defined under the Rules, based on which, the assessee issued a letter dated 25th April, 2005 indicating its intention to again make the reversal of its Cenvat credit entries and also enclosing the original invoice bills. 6.In this view of the fact, we find that the show cause notice was wrongly issued on a wrong premise that no permission was taken or that original documents were not filed. In fact, we find that the appellant had not only intimated the department about its intention but also had filed the necessary documents. The letter indicated the details of the description of the goods, the invoice bills and the credit to be taken. This was in consonance with the provisions of Rule 9. If the authority had any objection they should have immediately asked the appellant for further clarifications, which in the instant case was not done. 7.The contention of the respondent that an application for refund of duty was required to be made u nder S ection 11B o f the Act does not hold water. It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoices which were already more than six months old. On factual score the learned Tribunal held that availing of the credit on the basis of the invoices when for the first time the credit entries were made in the RG- 23A Part 2 record in accordance with law. The Tribunal further held that having earned that credit it was only utilisation which was to be survived when the appellant made credit entry in their records second time, they were only reversing the debit entry of the credit already earned by them. 7.On the fact finding by the learned Tribunal we hold that the learned Tribunal has correctly held that provisions of Rule 57G (2) do not have any role to play in these circumstances and their contravention cannot be alleged against the appellant. In view of the factual finding and further appropriate application of law we do not think fit that judgment of the learned Tribunal should not be interfered with. Moreover, we have examined the provisions of Section 57G which is the basic provision for allowing credit and when the Tribunal on fact found this the other portion of the law has got no determinative value in this matter." 12.There is no contrary opinion from any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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