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TMI Blog2025 (1) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ER-2 return filed by the appellant. This Tribunal is of the view that in such circumstances there is no necessity to put the appellant through the rigors of seeking refund by following the procedures of section 11B of the Act. The reliance placed by the adjudicating authority on the decision of Tribunal larger bench in BDH Industries [ 2008 (7) TMI 78 - CESTAT MUMBAI-LB] is misplaced. This tribunal in Sopariwala Exports Pvt Ltd v CCE, Vadodara [ 2013 (5) TMI 430 - CESTAT AHMEDABAD] has already held that when the High Court decision holds the field the larger bench decision does not have binding effect. It is also pertinent that the jurisdictional officer has not raised any objection to the appellant s intimation of its intent to avail the credit being reversed at a later date, when communicated vide appellant s letter dated 21.07.2009. That apart, the appellant has also stated that they had intimated the availment of the credit in the ER 2 returns filed and further that to an audit objection against the availment during March 2011, they had, vide letter dated 27.04.2011, replied that the objection is unsustainable - Even otherwise, when the appellant has already communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for erection of pre- engineering steel building. During June 2009, they took cenvat credit of services tax of Rs.72,60,233/- paid by the said service provider, on the strength of service tax invoice dated 27.12.2008 issued by the service provider. The said availment was duly reflected in the ER2 returns filed with the department. 3. Thereafter, pursuant to a letter dated 20.07.2009 issued by the department, the appellant, vide their letter dated 21.07.2009 in reply, provided the details of the input service credit taken and also intimated reversal of the cenvat credit of Rs.72,60,233 taken. The said expunging of cenvat credit taken was made by reversing cenvat credit of Rs.67,25,000/- vide debit in the cenvat account and paying Rs.5,35,235 in PLA. In the said letter, the appellant had also intimated that they will take this credit at a later date, once the building is complete in all respects. Further, inasmuch as they had utilized an amount of Rs.6,03,997/- out of the total credit of Rs.72,60,233/- towards payment of excise duty on clearance of final product, they also paid an interest of Rs.27,765/- towards the said credit taken and utilized. 4. Subsequently, upon completion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vertheless reversed it on the instructions of the range officer that they were not entitled to avail cenvat credit of service tax paid towards erection charges, before the completion of expansion process, on an erroneous understanding of the position in law. He stressed that in the instant case, there is no dispute that erection services on which they had taken service tax credit are eligible input services in terms of Rule 2 (l) of CCR 2004. 7. He also pointed out that in the letter dated 21.07.2009 itself, they had intimated that they were reversing the credit only for the reason that the building expansion is yet to be completed and that they shall be availing the said credit once the building work gets completed in all aspects at a later date. Thus, when the eligibility of the input service tax credit is not at all disputed by the department at any stage and even in the impugned notice, and further when the department had not raised any objection to their expression of intention to avail cenvat credit conveyed in the letter dated 21.07.2009, the demand of suo-moto credit taken of the earlier reverse credit, is decidedly not legal, especially since such reversal and re-credit we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally entitled to take credit of, there is no illegality attached to the said taking of credit. Moreover, such taking of credit stands reported in the ER-2 return filed by the appellant. This Tribunal is of the view that in such circumstances there is no necessity to put the appellant through the rigors of seeking refund by following the procedures of section 11B of the Act. The reliance placed by the adjudicating authority on the decision of Tribunal larger bench in BDH Industries is misplaced. This tribunal in Sopariwala Exports Pvt Ltd v CCE, Vadodara, 2017 (49) STR 195 (Tri-Ahmd) has already held that when the High Court decision holds the field the larger bench decision does not have binding effect. It is also seen that the issue is no more res-integra, and stands settled in the appellant s favour by the decision of the jurisdictional High Court in ICMC Corporation Limited reported in 2014 (302) ELT 45 MAD, which has also been followed in these cases:- (i) Krishnav Engineering Ltd 2015(12) TMI 234 Allahabad High Court. (ii) Hwashin Automative India Pvt. Ltd., - 2020 (2) TMI 1166 Madras High Court (iii) Tractor and Farm Equipment Ltd., - 2016(11) TMI 511 CESTAT Chennai. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 as it existed during the relevant period viz., 2004-2006 getting the reversal of the entry is in tune with its stand taken, which was accepted by the Tribunal in the earlier round of litigation . 6. This decision was followed by the Hon ble High Court of Allahabad in Kishnav Engineering Ltd 2016 (331) ELT 391 (All) Following the said decisions of the Hon ble High Courts I am of the view that the allegations in the show cause notice cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief if any. 11. It is also pertinent that the jurisdictional officer has not raised any objection to the appellant s intimation of its intent to avail the credit being reversed at a later date, when communicated vide appellant s letter dated 21.07.2009. That apart, the appellant has also stated that they had intimated the availment of the credit in the ER 2 returns filed and further that to an audit objection against the availment during March 2011, they had, vide letter dated 27.04.2011, replied that the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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