2013 (5) TMI 6

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....r (Appeals) decided the issue of admissibility of cenvat credit in their favour vide Order in Appeal No. RKS/253-254/SRT-II/2004 dated 24.09.2004. Aggrieved by the order in appeal dated 22.12.2006, Revenue has filed this appeal on the grounds that following judgments have not been considered by Commissioner (Appeals) on the issue that suo-moto credit cannot be taken by an assessee:-    (a) Mafatlal Industries Limited vs. UOI [1997 (89) ELT 247 (SC)]    (b) Oudh Sugar Mills Limited vs. CCE, Allahabad [2006 (199) ELT 628 (Tri. Del.)] 2. Heard both sides. 3. Learned A.R. reiterated the grounds of appeal and also relied upon the following additional judgments on the issue that suo-moto credit cannot be taken by t....

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....ue of cenvat credit on merits was decided in their favour by Commissioner (Appeals). Appellant department has relied upon the certain judgments in their grounds of appeal as well as during the course of hearing and emphasized that suo-moto credit is not permissible and the same could have been taken by following the refund procedure under Section 11B of the Central Excise Act, 1944. It is observed that the earliest of the relied upon judgments is that of the Hon'ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI [1997 (89) ELT 247 (SC)] which was delivered in relation to the amendment made in 1991 to introduce the concept of unjust-enrichment with respect to refund cases under Section 11B of the Central Excise Act, 1944. S....

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....se, not only the cenvat credit was reversed under protest but a proper appeal was also filed on the issue before Commissioner (Appeals) on admissibility of credit. Only after getting the case decided in their favour, cenvat credit was taken by the respondent. The facts of this case are thus substantially different from the facts of Oudh Sugar Mills case (supra). Hence the same is not applicable to the facts and circumstances of this case. 7. Similarly, in the case of Vighnahar SSK Limited vs. CCE Pune (supra), it was held that refund claim was required to be filed so that the same could pass the test of unjust enrichment. In the instant case, the cenvat credit was reversed before the issue of show cause notice. It is settled law now that....