2012 (9) TMI 166

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....gible for Mobile Phones. 2. Sept. '04 to Nov. '05 The Appellant had taken Service tax credit of Rs. 3,34,713/- paid on mobile phones for the period from September 2004 to November 2005. 3. 10-9-2004 Introduction of CENVAT Credit Rules, 2004 4. 14-12-2005 The Appellants had reversed the Service Tax credit vide Sl. No. 216, dated 14-12-2005 in their Cenvat credit account. 5. 6-2-2006 The Appellants paid the interest of Rs. 21,357/- vide TR-6 Challan No. 14/2005-06, dated 6-2-2006. 6. 23-8-2006 Decision of this Hon'ble Tribunal in Indian Rayon & Industries Ltd. v. C.C.E., Bhavnagar [2006 (4) S.T.R. 79 (Tri-Mumbai)] allowing Cenvat credit of service tax paid on mobile phone. 7. 30-9-2006 The....

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.... that the suo motu credit taken by the appellants on 30-9-2006 is, in fact, adjustment of the credit wrongly reversed on the insistence of the departmental authorities and the same does not amount to taking a refund. 3. He, however, submits that as for the credit relating to the period 1-9-2004 to 9-9-2004, the credit amount, if any, which is not readily ascertainable, is required to be reversed and the appellants undertake to reverse the same within one-month period. He also states that since the credit with effect from 10-9-2004 was not required to be reversed, the interest erroneously paid on the insistence of the department requires to be refunded since the claim for the same has been filed within time on 13-12-2006. 4. ....

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....the audit objection and the subsequent instruction of the departmental authorities which prompted the appellants to reverse the credit and pay the interest were clearly wrong. The Board has also accepted this position, while issuing a subsequent circular, dated 23-8-2007 in paragraph 8.3 thereof. As such, the erroneous reversal made by the appellants, prompted by wrong audit objection and an inapplicable circular, has been rectified by the appellants by taking the suo motu credit of the reversed amount which is not the same as taking refund of excess duty amount paid. Hence, I am of the considered view that the Larger Bench decision in the case of BDH Industries Ltd. (cited supra) has no application to the present case except to the extent ....