TaxTMI 
TaxTMI 
2023 (11) TMI 151
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....nal order no. A/416-417/WZB/AHD/2012 dated 19.03.2012 by allowing the cenvat credit on outward transportation against which the Revenue filed the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme court vide order dated 17.01.2018 dismissed the Revenue's appeal. Accordingly, the eligibility of cenvat credit on outward transportation in the respondent's case attained finality in their favour. 1.2 In another proceeding which is related to the appeal here in respondent had taken suo-motu re-credit which was reversed during proceeding of the above case. The said suo motu credit was taken after the Tribunal allowed the cenvat credit on outward transportation in the case discussed above. The revenue has issued show cause notice dated 10.04.2013 whereby it was proposed to disallow the cenvat credit of Rs. 59,35,233/- which was suo motu re - credited by the respondent. The proceeding of the said show cause notice was dropped by the Commissioner (Appeals) vide impugned order-in original dated 15.10.2013. Being aggrieved by the said order dated 15.10.2013, the revenue filed the present appeal on two grounds:- i. The respondent is not entitled to take suo motu re-credit. ii. Ag....
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.... The respondent was legally entitled for re-credit as consequential relief flowing from the said Tribunal's order. Therefore we do not see anything wrong in taking the suo moto re-credit which is clearly in compliance to the Tribunal's order. This issue has been considered by this Tribunal in case of C.C.E, Surat -II vs. Vardhman Acrylics Ltd - 2013 (292) ELT 558 (Tri. Ahmd) wherein the Tribunal has taken the following view: "5. The only issue required to be deliberated in this appeal is whether or not respondent can take Cenvat credit suo motu, when the issue of Cenvat credit on merits was decided in their favour by Commissioner (Appeals). Appellant-department has relied upon certain judgments in their grounds of appeal as well as during the course of hearing and emphasized that suo motu credit is not permissible and the same could have been taken by following the refund procedure under Section 11B of the Central Excise Act, 1944. It is observed that the earliest of the relied upon judgments is that of the Hon'ble Supreme Court in the case of Mafatlal Industries Limited. v. UOI [1997 (89) E.L.T. 247 (S.C.)] which was delivered in relation to the amendment made in 1991 to introdu....
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.... once Cenvat credit taken is reversed than it is considered to be as if no credit is taken. After reversing the credit, respondents in this case agitated the issue and got the decision in their favour. Once an issue on admissibility of Cenvat credit is decided in their favour by appellate authority then the Cenvat credit becomes admissible. There is no law to deny Cenvat credit when the same is held admissible and an assessee does not require the approval of any authority to take the admissible Cenvat credit as per the Cenvat Credit Rules. This was not a situation where a refund claim was required to be filed to stand the test of unjust enrichment as per the law laid down by the Hon'ble Supreme Court in the case of Mafatlal Industries Limited. (supra). The relied upon judgments by the appellant are thus distinguishable and not applicable to the facts and circumstances of this case. It has also been held by the CESTAT, Ahmedabad Bench in the case of Bock India Pvt. Limited. v. CCE, Vadodara [2009 (241) E.L.T. 251 (Tri.-Ahmd.)] that Larger Bench decision of the Tribunal in the case of M/s. BDH Industries Limited v. CCE [2008 (229) E.L.T. 364 (Tribunal-LB)] is not applicable to refund....
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....able because the Tribunal has not granted any stay in favour of the department and against the petitioner regarding operation of the order of the Commissioner (Appeals). The impugned show cause notice is not at all tenable and is issued by the Assistant Commissioner of Central Excise, Ahmedabad-I in defiance to the order of the Commissioner (Appeals) and cannot be countenanced. The impugned show cause notice is, therefore, without any authority of law and deserves to be quashed and set aside. 7. Accordingly, this petition is allowed and the impugned show cause notice dated 16.2.2004 is quashed and set aside. It goes without saying that ultimately if the department succeeds before the Tribunal, the petitioner will have to refund the amount. It is also clarified that we have not gone into the merits of the controversy which is the subject matter of appeal before the Tribunal. Rule is made absolute." 4.3 In another case of Ratnamani Metals & Tubes Ltd vs. CCE & ST - Ahmedabad- III - 2014 (35) STR 111 (Tri. Ahmd) dealing with the similar case the Tribunal has passed the following order:- "6. In my view, the issue in the case is regarding the availment of suo motu credit by the ap....