2019 (2) TMI 853

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....ged in mining and export of iron ore and manganese ore and are availing the facility of CENVAT credit under CENVAT Credit Rules, 2004. 2.1 On the basis of intelligence that the appellant had suo moto availed CENVAT credit without following proper procedure, the Central Excise Headquarters Preventive Unit, Bangalore-II Commissionerate conducted further investigation. It was observed that during the period from February 2012 to December 2012, the appellants had defaulted in payment of Central Excise duty towards DTA clearances totally amounting to Rs. 26,93,388/-. The appellants paid the amount on 15.2.2013 by debiting their service tax CENVAT account. On being pointed out by the Range Superintendent that the assessee was not eligible to u....

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.... objected to by the Department on the ground that he cannot take the re-credit on his own and has to file the refund claim under Section 11B of the Central Excise Act. He further submitted that this issue is no more res integra that suo moto re-credit is permissible as held by the Karnataka High Court in the case of Motorola India Pvt. Ltd. : 2006 (206) ELT 90. The learned counsel also relied upon the decision of CESTAT Mumbai in the case of M/s. Raptakos Brett & Co. Ltd. vs. CCE which relied upon the decision of the Karnataka High Court in the case of Motorola India Pvt. Ltd. In the case of Motorola India Pvt. Ltd., the Karnataka High Court has held that "The Tribunal after noticing the material facts has chosen to allow the claim on the b....

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....the CENVAT credit account, for which the Department issued the show-cause notice. In view of the settled position in the case of Motorola India Pvt. Ltd. cited supra, the appellant was entitled to take re-credit suo moto. Further, I find that once Rule 8(3A) has been declared as unconstitutional which means that the payment made by the appellant on 15.2.2013 itself was correct and there was no requirement to pay the same again in cash but having been paid the same by cash again, the appellant is entitled to get back this amount paid by cash and as per the provisions of Section 142 of CGST Act, the appellant is entitled to get the refund in cash if the same arises on account of the litigation. Further, I find that in the case of K. G. Denim ....