TaxTMI 
TaxTMI 
2008 (7) TMI 168
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.... appellant vide letter dated 31-8-2004 informed the Assistant/Dy. Commissioner that they are taking credit of the amount of Rs. 5,57,339/- in their RG 23A Part-II vide Entry No. 274, dated 31-8-2004. The lower authorities issued a show cause notice dated 4th April 2005 directing the appellant why the credit should not be disallowed since it is in violation of Rule 7(1) of the Cenvat Credit Rules, 2002 and Rule 9(1) of the Cenvat Credit Rules, 2004. The adjudicating authority came to the conclusion that the credit availed by the appellant is improper and would amount to refund being taken by the appellant without following the proper procedure. On an appeal the ld. Commissioner (Appeals) also came to the same conclusion. 3. The issue was re....
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....lved in this case is now squarely decided by the Larger Bench, the appellant cannot avail credit on a letter which was given by him for availing credit in RG 23 Part-II, the appellant needs to produce duty paying document. The letter addressed by the appellant cannot be considered as duty paying document by any stretch of imagination 6. Considered the submissions made at length by both sides and perused the records. As regards the availment of the credit in the RG 23A Part-II by the appellant, the letter dated 31-8-2004 of the appellant reads as under :- "The Deputy Commissioner of C. Excise Malad Division, Commissionerate, Mumbai-V. Takashahila Bldg. Goregaon (East) Mumbai 400 062. Dear Sir, Sub : Excess debit of Excise Duty We c....
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....y the appellant on the said letter was only on the ground that they have debited monthly duty for the month of February twice over. I find that on this point being i.e. whether the assessee can take suo motu credit of the amount and refund without sanctioned by the proper officer, the Larger Bench held as under :- "We find that there is no provision under Central Excise Act and Rules allowing suo motu taking of credit of refund without sanction by the proper officer. The appellant's contention that refund in respect of duty paid twice cannot be considered as refund of duty and is only the accounting error does not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has ....
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....31-8-2004 vide RG 23A Part-II Entry No. 274, dated 31-8-2004 even after knowing that the duty credit cannot be taken on other than documents specified under Rule 7(1) of the erstwhile Cenvat Credit Rules, 2002 and Rule 9(1) of the Cenvat Credit Rules, 2004". It is also sent that subsequent to setting out the above said allegation the show cause notice further reads as under :- "Now therefore, the said M/s. BDH Industries Ltd. are required to show cause to the Additional Commissioner, Central Excise, Mumbai-V, having his officer at 4th Floor, Utpad Shulk Bhavan, Plot No. C 4, Bandra Kurla Complex, Bandra (East), Mumbai 400 051 as to why. (i) The amount of Central Excise duty of Rs. 5,57,339/- (Rupees Five Lakhs Fifty Seven thousand Three ....