2017 (12) TMI 92

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....re that in the month of August 2008, the appellant cleared goods to one M/s Essar Construction Co Ltd located in the SEZ area. As the appellant was not required to pay Service Tax on the services provided to a unit located in SEZ area, inadvertently paid the Service Tax. In the subsequent month, as no Service Tax was paid by the unit located in the SEZ area, the appellant adjusted the Service Tax for the subsequent period and shown the same in the ST return. Revenue is of the view that the said adjustment of suo moto credit taken by them is not permissible, therefore, the proceedings were initiated against the appellant and suo moto credit taken by the appellant was denied against the said order. Therefore, the appellant is before me. 3.....

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....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 in their CENVAT account to the tune of....

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....er dated 1-9-2005 passed in appeal No. E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. 2. The respondent-assessee by mistake debited an amount of Rs. 1,58,099/- in excess of the duty payable in their PLA/CENVAT account for the month of March 2001. The same was brought to the notice of the Department by the respondent in terms of a letter dated 12-6-2001. The authorities directed the respondent to file a refund claim. Another letter was submitted by the assessee stating therein that there was an error committed in the matter. Subsequently, a refund application was also filed by the assessee. Claim was rejected on the ground of lapse of time by the Assistant Commissioner. The same was confirmed by the Appel....