TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 444
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.... tax on GTA Services under reverse charge mechanism from their cenvat account. On being objected by the department they deposited the same in cash along with interest. They filed refund claim towards amount deposited from Cenvat. The said claim was rejected. The Respondent thereafter suo moto availed credit of said amount. They were issued show cause notice dated 27.01.2009 proposing recovery of credit availed by them on the ground that they have availed inadmissible credit without the valid documents and the same is liable to be disallowed and recovered from them in terms of Rule 14 of Cenvat Credit Rules. A penalty was also proposed upon them. The Adjudicating authority vide impugned order though allowed the credit but imposed penalty of ....
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....Enterprises 2015 (322) elt 728 (TRI). 5. Heard both the sides and perused the records. We find that the Respondent had paid service tax from cenvat credit, but the same was objected by the department. The Respondent then paid the said service tax amount in cash. Once they paid the service tax in cash, they become eligible for the re-credit of amount paid by them from cenvat. The issue is no more res - integra and the same stands decided in various judgments of Hon'ble High Court and Tribunal wherein it was held that when the tax stands paid twice, the excess amount is not a tax but has to be considered as deposit. In case of Motorola India Pvt. Ltd 2006 (206) ELT 90 (Kar.), the Hon'ble High Court held as under: "The respondent-assessee b....
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.... 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 arises. The order is based on the law laid down by the Apex Court." 6. Further in case of J.K. Lakshmi Cements 2015 (40) STR 618 (TRI), the tribunal held as under: "6. Heard the parties, considered the submissions. 7. In this case, facts are that the appellant is required to service tax on output transportation service during the period March, 2005 to March, 2006. The appellant utilized their cenvat credit account for payment for output transportation service. The Revenue sought to deny utilization of cenvat credit account for payment of output transportation service. T....
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....llowed such correction of entries, when the appellant paid the tax in cash. As such I do not find any justification in rejecting the appellant's claim of reversal of entries on the ground that the same was done suo motu. There being otherwise no dispute about the fact that such reversal of debit entries was otherwise available to the assessee, raising of objection by the department is not sustainable. The impugned order is accordingly set aside and appeal is allowed with consequential relief to the applicant. 9. The ld. AR strongly has relied on the decision of Larger Bench in the case of BDH Industries Ltd. (supra) wherein it was held that the suo motu credit is not available but in the case of Motorola India Pvt. Ltd. (supra) the Hon'bl....