2015 (7) TMI 542 - AT - Central Excise

Tribunal Allows Correction of CENVAT Credit, Grants Relief

The Tribunal concluded that the re-credit of CENVAT credit by the appellant was permissible, setting aside the demand, penalty, and interest imposed by ... Reversal of CENVAT credit - Subsequently, neither any query was raised by the department nor any show cause notice was issued - appellant took re-credit of the said amount - Held that:- re-credit is not against any amount of duty payment. It is admittedly re-credit of an amount of CENVAT credit debited at the instruction of the officers. I find that the amount of debit which was made earlier was legally admissible as CENVAT credit to the appellant. Because of the reversal at the instance of the departmental officers, on which the revenue has not raised any dispute on admissibility, re-credit the same by the appellant cannot be faulted with. - suo motu re-credit of the amount reversed by an assessee, there is no need to file any refund claim under Section 11B. In view of teh Madras High Court judgment, which is squarely applicable in the present case, re-credit of the amount already reversed by the appellant cannot be objected to. - Decided in favour of assessee. Issues Involved:1. Legitimacy of the re-credit of CENVAT credit taken by the appellant.2. Requirement of filing a refund claim under Section 11B of the Central Excise Act, 1944.3. Applicability of judgments cited by both parties regarding the re-credit of CENVAT credit.Detailed Analysis:Legitimacy of the Re-Credit of CENVAT Credit:The appellant had initially reversed CENVAT credit amounting to Rs. 1,70,737/- on the instruction of Central Excise officers but later took re-credit of the same amount. The adjudicating authority confirmed the demand for this amount, imposed a penalty, and demanded interest. The Commissioner (Appeals) upheld this order. The appellant argued that the re-credit was a correction of an earlier debit made at the department's instruction, and since no dispute was raised subsequently, the re-credit was justified. The appellant cited several judgments supporting their stance, emphasizing that the re-credit is a book entry and not an actual financial transaction.Requirement of Filing a Refund Claim Under Section 11B:The appellant contended that there was no need to file a refund claim under Section 11B of the Central Excise Act, 1944, for the re-credit amount. They argued that the reversal was an account entry without any actual outflow of funds, hence not requiring a refund claim. The judgment of the Madras High Court in the ICMC Corporation Ltd. case supported this view, stating that the concept of unjust enrichment does not apply to such re-credits and that the assessee can take suo motu credit without filing a refund claim.Applicability of Judgments Cited by Both Parties:The respondent (Revenue) opposed the re-credit, citing various judgments, including the BDH Industries Ltd. case, which held that suo motu re-credit is not permissible. However, the appellant countered this by citing the Sopariwala Exports Pvt. Ltd. case, where the Tribunal held that the BDH Industries judgment was not applicable due to a subsequent ruling by the Karnataka High Court in the Motorola India Pvt. Ltd. case. This ruling allowed suo motu credit for amounts paid by mistake, considering them as deposits rather than duty, thereby not subject to the limitations of Section 11B.Tribunal's Findings:The Tribunal found that the re-credit taken by the appellant was legally admissible since the initial debit was made under the instruction of departmental officers without any subsequent dispute on its admissibility. The Tribunal referenced the Madras High Court's judgment, which clarified that suo motu re-credit does not necessitate a refund claim under Section 11B. Additionally, the Tribunal observed that the BDH Industries case had been effectively departed from in subsequent judgments, particularly in light of the Karnataka High Court's ruling in the Motorola India Pvt. Ltd. case.Conclusion:The Tribunal concluded that the re-credit of CENVAT credit by the appellant was in order and set aside the impugned order, allowing the appeal with consequential relief in accordance with the law. The judgment emphasized that the re-credit was a technical adjustment rather than an actual financial transaction, thus not requiring adherence to the refund claim procedures under Section 11B. The Tribunal's decision was pronounced in court, providing a detailed rationale for allowing the appellant's re-credit of the CENVAT credit.