2011 (9) TMI 597

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....d with the Central Excise Department. They also provide taxable output services such as consulting engineering service and erection, commissioning and installation service and are registered with the department as a service provider.  They made payments of service tax amounting to Rs. 4,08,000/- on 31/12/2005 and Rs. 1,27,500/- on 30/04/2006 towards service tax on consulting engineering service and erection, commissioning and installation service rendered. The service tax was paid through CENVAT credit account. During the course of audit of the records of the company, the excise authorities observed that the payment of the above amount of service tax totalling Rs. 5,35,500/- through CENVAT credit was not proper and the tax liability sh....

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....75/-.  2.2. The appellant filed an appeal before the Commissioner (Appeals) praying for sanction of refund in cash and also for sanction of the disallowed refund on account of interest amounting to Rs. 1,40,075/-. The learned Commissioner (Appeals) vide order dated 30/10/2009 upheld the order of the adjudicating authority and rejected the appeal of the appellant. The appellant is before me against the impugned order dated 30/10/2009 (Appeal No. E/167/2010).  2.3. In the meanwhile, the Revenue also filed an appeal against the sanction of the refund claim vide order dated 11/08/2009 passed by the jurisdictional Assistant Commissioner on the ground that there was no provision in law to take suo motu credit of the amount initial....

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....quired to be paid. Therefore, the appellant cannot turn-around now to say that they are entitled for making the payment of the service tax through the CENVAT credit account. The learned DR further submits that the appellant was not entitled for suo motu recredit of the CENVAT credit wrongly availed. 5. I have carefully considered the rival submissions. 6. In the instant case the appellant-assessee made the payment of service tax through CENVAT credit account. On being pointed out by the department that the said payment is not proper they paid the service tax amount in cash along with interest thereon. They did not make this payment under protest. In another words, they accepted that they are liable to pay service tax in cash and not f....