TaxTMI 
TaxTMI 
2015 (7) TMI 542
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....redit a show cause notice dated 09/07/2007 was issued proposing disallowance of the said re-credit, demand of interest under Section 11AB and penalty under Rule 15 of the CENVAT Credit Rules, 2004. In adjudication, the adjudicating authority has confirmed the demand of Rs. 1,70,737/-, demanded interest under Section 11AB and imposed penalty of Rs. 2,000/- under Rule 15(1) of CENVAT Credit Rules, 2004. Aggrieved by the said order, an appeal was preferred by the appellant before the Commissioner (Appeals), who upheld the order-in-original. Aggrieved by the said impugned order the appellant is before me. 3. Shri Mayur Shroff, learned counsel for the appellant submits that CENVAT credit was denied on the ground that for taking re-credit no document is available. He submits that re-credit is nothing but the reversal of the debit made at the instance of the departmental officers. Though the departmental officers got this amount debited, but lateron no dispute was raised about the admissibility of the said credit. Therefore, the appellant correctly took re-credit of the said amount in their CENVAT credit account. The re-credit is nothing but as good as fresh CENVAT credit availed in ac....
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....el, in one of the judgment, the honble Madras High Court has held as under: "13. We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat Credit on service tax for discharging its liability. However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004, as there is no dispute of the fact that a sum of Rs. 3,21,308/- available as Cenvat Credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the C....
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.... under Rule 6(5) of the Cenvat Credit Rules, 2004 and nothing beyond. 19. On this aspect, we specifically posed the question to learned counsel appearing for the assessee, who re-affirmed the same and given the fact that re-credit of the credit reverse was only in respect of those enumerated services under Rule 6(5) of the Cenvat Credit Rules, 2004 on which there is no dispute from the Revenue, we have no hesitation in accepting the assessee's case. 20. In the result, we set aside the order passed by the Customs, Excise and Service Tax Appellate Tribunal and allow the assessee's case. No costs. Consequently, the connected miscellaneous petition is closed." 6. From the above judgment it is clear that suo motu re-credit of the amount reversed by an assessee, there is no need to file any refund claim under Section 11B. In view of teh Madras High Court judgment, which is squarely applicable in the present case, re-credit of the amount already reversed by the appellant cannot be objected to. 7. As regard the Revenue's reliance on the Larger Bench judgment in the case of BDH Industries Ltd. (supra), I have observed that in the case of Sopariwala Exports Pvt. Ltd. ....
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....I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited , sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the and credit was taken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. I find that the law as has been decided by the Larger Bench seems to be incorrect on the face of the fact that the judgment of the Tribunal in Motorola India Pvt. Limited was carried in appeal before the Hon'ble High Court of Karnataka and their Lordships have upheld the said order. It is seen from the case of BDH Industries Limited that the said judgment of the Hon'ble High Court of Karnataka was, not brought to the notice of the Larger Bench when they heard the Larger Bench reference. In order to appreciate the correct position of the law I first, reproduce the ratio laid down by the Tribunal in the case of Motorola India Pvt. Limited, which is as under :- "6.We have gone through the records of the case carefully. In the month of March 2001, the appellants debited excess amount i....