2016 (4) TMI 769

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....aside. Under Order-in-Original dated 02.07.2007 Adjudicating Authority rejected a refund claim of Rs. 8,63,245.82 filed by the Appellant. 2. Shri K.Chowdhury, Supdt.(AR) appearing on behalf of the Revenue argued that Respondent is a manufacturer of Railway Wagons etc. and has taken MODVAT Credit of Rs. 8,63,246/- on MS Waste and Scrap on the basis of invoices issued by M/s.Vikash Industrial Corporation, a Registered Dealer. That on 02.04.1997 DGCEI carried out certain investigations and pointed out to the Respondent herein to pay back the MODVAT Credit improperly taken. That on 07.05.1997 Respondent paid back MODVAT Credit taken through cheque and informed DGCEI Authorities that the payment is made to settle the difference, to buy peace ....

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....use Notice. That in view of the existing facts, Respondent cannot now take a contrary stand after 10(ten) years from the date of paying back improperly taken credit. The ld.AR relied upon the case law of Apex Court in the case of Tractors and Farm Equipment Ltd. vs. CC, Madras [1997 (91) ELT 254(SC)]. 3. Shri Saurabh Bagaria (Advocate) and Shri Partha Banerjee (Advocate) appeared on behalf of the Respondent. It was argued by Shri Bagaria that Respondent never accepted the duty liability and amount was paid as a result of coercion by the Investigating Agency. That amount paid has not been appropriated by the Adjudicating Authority and has to be considered as a deposit for which no time limit is applicable. He relied upon the case law deci....

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....that credit taken with respect to certain invoices received from M/s.Vikash Industrial Corporation, a Registered Dealer is not admissible. The amount was paid by the Respondent on 07.05.1997. An intimation was also given to DGCEI(earlier named as DGAE) indicating that the amount paid is towards MODVAT Credit taken by the Respondent. It is the case of the Revenue that amount paid back was voluntary payment. On the other hand Respondent is of the view that the payment cannot be considered as an admission of improperly taken credit and has to be treated as a deposit with the Department. In this regard it is observed from para 5 of Order No.A-5/KOL/06 dated 05.01.2006 passed by this Bench in the earlier proceedings that Shri S.K.Roychowdhury, A....

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.... internal Combustion Piston as certain components. Subsequently the same Appellant claimed the imported goods as sub-assemblies for Piston Engines. It was observed by the Honble Apex Court that Appellant cannot later turn around and say that the goods imported by them constitute sub-assemblies of Piston Engines. The ratio laid down by the Apex Court in this case law relied upon by AR is squarely applicable to the factual matrix of the present proceedings. Having raised the issue of admissibility of MODVAT Credit on the basis of appropriate documents, as recorded in the Order-in-Original dated 06.08.2001 by the Adjudicating Authority in the first round of litigation, Respondent did not file any Appeal before the higher forum claiming admiss....