TaxTMI 
TaxTMI 
2009 (8) TMI 1044
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....ef. UTCL/ACTS/VJ/06-07/291 dated 21st April, 2006 have enclosed the details of Cenvat credit availed in respect of the goods falling under Chapters 72 & 73 of the Schedule to the Central Excise Tariff Act, 1985 and the usage particulars of those goods for the period from April 2000 to March 2006. They have stated that as per the decision of Hon'ble CESTAT in the case of M/s. Ispat Industries Ltd. v. CCE - 2006 (195) E.L.T. 164 (Tri.-Mum.) which allowed the Cenvat credit on structural items such as angles, channels, plates, rods etc., they propose to take re-credit of the credit reversed under protest up to 31st March, 2006, as per the details enclosed to the letter. Though the assessees have stated in their letter that they have reversed the duty under protest up to March 2006, they have actually reversed duty up to 1-4-2005 and later on they have only taken Cenvat credit of the same under the head capital goods and did not reverse the credit. The assessees were issued with show cause notice in C.No. V/72 & 73/15/16/2005, dated 6-1-2006 by the Assistant Commissioner, Central Excise, Anantapur division proposing the confirmation of Cenvat credit availed and reversed during the perio....
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....be imposed on them in terms of sub-rule (1) of Rule 15 of Cenvat Credit Rules, 2004 for the alleged contravention of the Cenvat Credit Rules, 2004 as discussed above; and (iv) Penalty should not be imposed on them in terms of Rules 25 of Central Excise Rules, 2004 for the alleged contravention of Rule 8 of the said Rules as discussed above." 3. The appellants contested the show cause notice on the ground that the credit has been taken by them on the conclusion of the proceedings which have been initiated against them and the proceedings were dropped. Consequent to dropping of such proceedings appellants have taken the credit. Adjudicating Authority did not accept the contentions of the appellants and had held that the appellant has taken wrong credit and passed the following order: "(i) I Order recovery of the Cenvat credit amounting to Rs. 82,45,876/- towards duty and Rs. 21,510/- towards Education Cess, irregularly availed and utilized by M/s. Ultratech Cement Ltd., A.P. Cement Works Bhogasamudram Village, Tadipatri Mandal under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A of Central Excise Act, 1944; (ii) I order recovery of interest at appr....
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.... that in any case imposition of penalty is not sustainable. 6. Learned DR appearing on behalf of the appellants would submit that the decision of the Larger Bench of the Tribunal in the case of BDH Industries Ltd. [2008 (229) E.L.T. 364 (Tri.-LB)] will squarely cover the issue in favour of the revenue. He would draw our attention to paragraphs 12 & 13 of the decision. It is his submission that the appellants have taken credit of the Cenvat credit which was earlier reversed by them based on the decision of the Hon'ble Tribunal. He would submit that issue of availment of suo motu credit has now been squarely settled by the Larger Bench in favour of the revenue. The assessee has to follow the route of refund claim, for the relief. 7. Learned counsel in rejoinder would draw our attention to the facts the case which was referred to the larger bench. He would submit that in that case, the issue was regarding payment of duty and not the issue of settling of dispute in favour of the assessee. He would draw our attention to the decision of the Hon'ble High Court of Gujarat to show that their case is totally covered by the decision of Hon'ble High Court. 8. We have considered the su....
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....e disallowed and recovered and why interest and penalty thereon should also not be recovered from the petitioner. It is the aforesaid show cause notice which is under challenge in this petition. 3. In response to the notice, affidavit-in-reply has been filed by Dr. A.L. Gupta, Assistant Commissioner of Central Excise, Division-IV, Ahmedabad opposing the petitioner and submitting that merely on the basis of the order of the appellate authority, the petitioner could not have suo motu utilized the amount lying to its credit in the deemed credit register. There is no provision or such suo motu refund. Secondly, it is submitted that the order of Commissioner (Appeals) is already appealed against by the department before Customs, Excise and Service Tax Appellate Tribunal. 4. ......... 5. Having heard the learned counsel for the parties, we are not in a position to appreciate as to how the respondents can find fault with the petitioner's availing of the amount lying to their credit in the deemed credit register after having succeeded before the Commissioner (Appeals). The respondents appear to be harbouring a misconception that there has to be some provision under which the petit....