2009 (3) TMI 738

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....e revenue. 3. The learned advocate submitted that when the first Order-in-Appeal No. 108/2007-C.E. was pending before the Tribunal in C.E. Appeal No. 574/2007, the lower authorities passed orders on identical issue without waiting for the outcome of the appeal from the CESTAT. Since the issue involved in both the appeals is one and the same, I am passing a common order. 4. I heard both sides. 5. The appellants inadvertently took excess cenvat credit. According to the department, they took excess credit of CVD Rs. 2,13,71,810/- and Education Cess of Rs. 4,27,436/-. The above lapse was pointed out by the department on scrutiny of appellant's monthly returns ER.-1. According to the appellant, the excess credit actually works ....

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....ecause the appellant had reversed the excess credit wrongly taken, all the consequences that arise in the course of demand under Section 11A do not follow. (ii)    Even after reversing the wrongfully taken credit, they had huge credit balance. As the appellant had not gained any financial accommodation on account of the wrong credit, it would be incorrect to say that what was paid back was not the same credit. (iii)   The ratio of the decision of Hon'ble Gujarat High Court in the case of CCE v. Gupta Steel - 2006 (205) E.L.T. 24 (Guj.) = 2008 (12) S.T.R. 101 (Guj.) is squarely applicable to the present case, even though the Commissioner (A) has tried to distinguish the same. (iv)   There was no material....

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.....L.T. 1116 (Kar.) (b)     Commissioner v. Shree Krishna Pipes Industries Ltd. - 2004 (165) E.L.T. 508 (Kar.) (ix)   The department out of revenue's zeal instead of computing interest on the wrongfully taken excess credit amount of Rs. 84,31,900/- has computed on entire sum of Rs. 2,17,99,246/- which includes the excess credit also. This is non-application of mind. (x)     Without considering the appellant's refund claim, the Original authority ought not to have ordered for appropriation of amount which is paid by them which is against all tenets of law. 7. The learned SDR strongly reiterated the impugned orders-in-appeal. She relied on the following case laws. (i)   ....