2015 (9) TMI 262

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....om the factory. During the course of audit, the visiting officers entertaining a view that they are not entitled to the credit of service tax paid on such GTA service. Accordingly, they raised objections and directed the appellants to reverse the credit of Rs. 1,94,086/-.  Accordingly, the appellants debited the same along with interest of  Rs. 26,759/- in their Cenvat credit account on 27.4.2007. 2. Subsequent to the said debit so made by kthe appellant, no proceedings were initiated against them by the Revenue for adjudication on the said disputed issue and the debit entry was never appropriated towards any payment of duty confirmed against them. The appellant subsequently claimed refund of the said debited amount vide their ....

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....tands that the amount in question cannot be considered to be duty inasmuch as there is neither any adjudication proceedings nor even any proposal to confirm the same. In such a scenario, the said reversal entry has to be treated as deposit , in which case the limitation would not apply. 5. It is undisputed that the appellants debited the Cenvat credit on the instructions of the audit team. The audit has no jurisdiction to adjudicate the disputed issue. Once the debit is made at the instructions of the audit team, the Revenue is under a legal obligation to initiate proceedings for confirmation of the amount in question, by deciding on the disputed legal issue. No such proceedings, by way of show-cause notice stands initiated against the a....

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....tion of provisions of Central Excise Rules, at the most appellants can be penalized for the violation of the said rules, on the face of the facts that there is no dispute regarding the goods cleared from the appellants units have reached the SEZ units and re-warehousing certificates were submitted to the authorities. It is also not disputed that the said re-warehousing certificates are genuine, in the absence of any contrary findings, in my considered view, the amount reversed by the appellants on 23-11-2007 by debit in cenvat account cannot be considered as an amount of duty due to the Revenue. If that be so, the refund claim filed by the appellants would squarely fall under the category as enumerated by the Board in their circular dt. 20-....