2018 (1) TMI 994

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....5-06, the assessee utilised their CENVAT credit for amount for the payment of output transportation service. As there was a circular dated 23-08-2007 which directs that on output transportation service, the service tax is required to pay in case. Since the assessee had utilised the CENVAT Credit amount for the payment of service tax. Therefore , the proceedings were initiated against the assessee to pay the service tax in case. When the matter was pending before the Commissioner (Appeals), a direction was given to the assessee to make a pre-deposit of the entire amount of service tax in case. The assessee in pursuance to the order passed by the Commissioner (Appeals) deposited the service tax in case and simultaneously has suo motu credited....

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....igh Court it is only the correction of entries which is being done by the assessee and further the asessee cannot be taxed twice as he has already deposited the demand of service tax by way of cash, therefore, the amount which has been paid through his CENVAT credit account is required to be reversed. 7. The somewhat similar controversy came up before the Gujarat High Court in case of S. Subrahmanyan & Co. v. Commissioner, 2011 (268) E.L.T. 497 which has held as under : "In the present case, we do not need to expand the issue by examining the question of refund under Section 11B of the Central Excise Act, Since facts are rather peculiar and simple. As held and observed by the Tribunal, the respondent had already paid excise duty....

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....ich has held as under : "The Tribunal, after noticing the material facts has chosen to allow the claim on the basis that the amount paid by mistake cannot be termed as duty in the case on hand. The Tribunal also stated that the time-bar does not apply in such cases. Somewhat in similar circumstances, the Apex Court in India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358 has chosen to accept the case of the assessee. The Madras High Court subsequently noticing the judgment of the Supreme Court has also chosen to hold that the claim is reasonable on the facts of this case. In the light of the case laws, we are of the view that the order of the Tribunal does not require any interference by us. No question of law ar....