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TMI Blog2008 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... Part-II on its own X X X X Extracts X X X X X X X X Extracts X X X X ..... ower authorities travelled beyond the show cause notice and hence the impugned order is sought to be set aside. He relies upon the following decision. 1. Thermoflex Gable Inds. [2006 (196) E.L.T. 124 (T)] 2.Transpek Inds. Ltd. [2001 (138) E.L.T. 189 (T); Upheld by Supreme Court [2002 (140) E.L.T. A97 (S.C.)] 3. Raphael Pharmaceuticals Ltd. [1988 (38) E.L.T. 11 (A.P.)] 4. Punjab Communications Ltd. [2006 (199) E.L.T. 161 (T)] 5. The ld. SDR on the other hand would submits that the issue involved in this case is now squarely decided by the Larger Bench, the appellant cannot avail credit on a letter which was given by him for availing credit in RG 23 Part-II, the appellant needs to produce duty paying document. The letter addressed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 31-8-2004. 4. In this connection we refer to and rely on the Hon'ble Tribunal judgment in the case of CCE v. Sanghi Polyesters - 2004 (169) E.L.T. 128 (Tri.-Bang.) 5th July 2004 wherein the Hon'ble Tribunal has held that "The assessee is entitled to take credit of excess duty paid by the assessee". A copy of the aforesaid judgment is submitted herewith for ready reference." It can be noticed from the above reproduced letter that the availment of the credit by the appellant on the said letter was only on the ground that they have debited monthly duty for the month of February twice over. I find that on this point being i.e. whether the assessee can take suo motu credit of the amount and refund without sanctioned by the proper officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed on". It can be noticed that the above ratio of the Larger Bench squarely covers the issue against the appellant. 7. As regards the point raised by the ld. Counsel that both the authorities have traversed beyond the allegations made in the show cause notice, I find that the show cause notice issued to the appellant clearly alleges as under :- "They have availed Cenvat credit of Rs. 5,57,339/- on the basis of their letter No. F/BDH/CE/185/2004-05, dated 31-8-2004 vide RG 23A Part-II Entry No. 274, dated 31-8-2004 even after knowing that the duty credit cannot be taken on other than documents specified under Rule 7(1) of the erstwhile Cenvat Credit Rules, 2002 and Rule 9(1) of the Cenvat Credit Rules, 2004". It is also sent that s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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