TaxTMI 
TaxTMI 
2026 (7) TMI 1351
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....ed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Excise Appeal No. 11435 of 2014 proposing following substantial questions of law: i. Whether taking of suo-moto credit by the respondent without following the statutorily prescribed refund procedure could be allowed even though there was no provision for such suo motu credit under Central Excise Act, 1944 or Rules made there under for the same? ii. Whether in the facts and circumstances of the case, respondent was allowed suo-moto credit/ refund of central excise duty paid twice/ in excess without filing refund application and without passing through the doctrine of unjust enrichment in terms of Section 11B of Central Excise Act, 1....
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....equired to be paid in respect of all consignments cleared for home consumption during the month. 3.2 Accordingly, the assessee debited the excess duty amounting to Rs. 1 Crore suo moto by taking credit for the same in their CENVAT Account Register (Service Tax) vide Entry No. 3096 dated 10.12.2010 without following the prescribed refund procedure. 3.3 The auditors also noticed that there is no provision under the Act and the Rules made thereunder for allowing suo moto taking of credit or refund without sanction by the proper officer. Accordingly, a show-cause notice dated 11.11.2011 was issued upon the respondent-assessee. On this being pointed out, the assessee therefore replied to the show-cause notice but it was held by the Adjudic....
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.... duty on export twice, one at the time of clearance of goods and second on the closer of month along with monthly payment of duty. Therefore, there is no dispute that on one clearance duty was paid twice, therefore the duty paid second time needs to be restored to the appellant as credit, the appellant had taken suo-moto credit. In our considered view if no discrepancy is found as regard the second time payment of duty and suomoto re-credit thereof then no objection could have been raised by the department. 4.1 We find that the appellant being law abiding assessee even though suo-moto credit was available to them, they had reversed the same on pointing out by the audit officers. Thereafter, the department could have regularized by ....
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....However, such reversal of credit was without verification by the concerned authority. It was submitted that if such a course of action is permitted, then the assessee would continue to reverse the credit on their own without any justification. It was also submitted that the provision of section 11B of the Act provides for time limit within which such an application for refund is required to be made before the concerned authority. It was therefore, submitted that the Tribunal ought to have held that the assessee is not entitled to reverse the credit suo moto only on the ground that the excess duty was paid by the assessee. 5. Having heard learned advocate for the appellant and on perusal of the order passed by the Tribunal it appears that....
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....heard the learned counsel for the parties, we find that the department has proceeded on the ground that the appellant had taken the Cenvat credit without any refund order or without permission from the proper authority and without filing proper documents under Rule 9 of the Rules of 2004. Rule 9 of the Rules of 2004 prescribes that Cenvat credit could be taken by the manufacturer on the basis of certain documents to be filed, namely, an invoice issued by the manufacturer for clearance of inputs or capital goods, etc. Admittedly, we find that the appellant had claimed Cenvat credit and had filed the proper invoice bills. The authority was satisfied and credit was allowed for which there is no dispute. However, for whatever reasons, the appel....
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....t held that the provisions of Section 11B of the Act was not applicable. We find that the appellant originally availed the Cenvat credit, which was allowed but for various reasons it reversed the credit. In our view, it is only an account entry reversal and there is no out flow of funds from the side of the appellant which may result in filing an application under Section 11B of the Act for claiming refund of duty. Consequently, in our opinion, the provision of Section 11B of the Act is not applicable. 7. Considering the fact that it is only an account entry reversal, we have no hesitation in holding that the Cenvat credit taken by the appellant by intimating the department vide their letter dated 25th April, 2005 was in accordance....