2018 (2) TMI 539

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.... for respondent This appeal has been filed by the Appellant against the impugned Order-in-Appeal dt.  17.07.2013 passed by the Commissioner (Appeals) wherein the OIO dt. 31.03.0213 confirming demand of Rs. 5,34,328/- and imposition of equivalent penalty was upheld. 2. The facts of the case, in brief, are that the Appellant filed refund of terminal excise duty before the Asstt. Developme....

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....d also imposed penalty holding that suo moto credit is not permissible. The Commissioner (Appeals) upheld the adjudication order. Hence the present appeal. 3.  Ld. Advocate Shri D.H. Nadkarni, appearing for the Appellant submits that as apparent from the facts they had earlier debited the cenvat credit for filing of refund and had requested the Range Superintendent for issue of certificate....

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....used the relevant records. 6. In the present case, it is an admitted fact on record that the cenvat amount was reversed at the time of filing of refund application. However the claim was rejected due to non issuance of certificate of debiting the amount. Once the refund has been rejected the Appellant become eligible for the recredit of such amount. Since, the disputed Cenvat credit has not bee....

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....cation under Section 11B of the Central Excise Act, 1944 claiming refund of duty........." 7. The reversal of Cenvat credit is not payment of duty and therefore, provisions of Section 11B of the Central Excise Act, 1944 are not applicable and as such the credit is permissible to the Appellant. The reliance placed by the revenue in the case of BDH Industries Ltd. (supra) does not carry the case ....