Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1245

On success of the appeal of the appellant, Whether the appellant could take suo moto credit of pre-deposit?
 
 

Case:-M/S SHARDA FORGING AND STAMPING P LTD V/S COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD
 
Citation: - 2012-TIOL-1216-CESTAT-DEL
 
 
Brief Facts: - The appellants are engaged in the manufacture of iron and steel articles. The dispute arose about availment of credit of Rs. 74918/- in respect of inputs purchased by the appellant in the month of June, 1999. Proceedings were initiated against the appellant resulting in denial of credit of the said amount as also for confirmation of demand of duty of Rs. 45388/- and 16153/- , which was paid by utilizing the said unavailable Modvat credit. However the matter reached the Tribunal and vide Final order dated 28/11/2005, the dispute was decided in favour of the appellant. As a result the appellant became entitled to the credit of Rs. 74918/-, which was debited by them after confirmation of demand by the lower authorities. Accordingly, the appellant after writing a letter dated 27/12/06 to their jurisdictional Assistant Commissioner, Central Excise re-credited the said amount in their RG-23A, Part-II account on 30.12.06.
Though the lower authorities have observed that the appellant applied for re-credit of the above amount vide their letter dated 27/12/06 but they did not wait for necessary sanction/approval of the Assistant Commissioner and took the credit suo – moto. By relying upon the Larger Bench decision in the case of BDH industries Ltd. reported in 2008 (229) ELT 364 (Tri.) = (2008-TIOL- 1211-CESTAT-MUM-LB), its stand held that the appellants are not entitled to the re-credit of the said amount. If that be so, they were directed to deposit the duty of Rs. 45388/- and Rs. 16153/- by way of cash in as much as the same was paid by utilizing the said credit. Penalty of Rs. 20000/- was also imposed upon them. Hence the appellants filed this appeal.

Reasoning of Judgment: - The Hon’ble CESTAT held that the dispute about the original availment of the Cenvat credit stands decided in favour of the appellant by the earlier decision of the Tribunal. The lower authorities have relied upon the Larger Bench decision in the case of BDH Industries. The said decision was considered by the Tribunal in the case of Ultra Tech Cement Ltd. reported in 2010 (261) ELT 696 (Tri.)= (2009-TIOL-2101-CESTAT-BANG) and it was observed that the same is not applicable to identical facts and circumstances in as much as the facts of the case before Larger Bench were different. Gujarat High Court’s judgment in case of Shyam Textile Mills reported in 2005(67) RLT 488 (Guj.) held that appellant could take suo - moto re-credit after the success of their appeal. To the similar effect is Tribunal’s decision in the case of Ceat Ltd. reported in 2010(254) ELT 349 (Tri.) and it was observed that the assessee becomes automatically entitled to  credit utilized for payment of duty on realising that such utilization was incorrect and when the duty was subsequently paid through PLA. In case of Bock India P. Ltd. reported in 2009 (241) ELT 251 (Tri.), it was held  that an assessee is within his rights to take suo-moto credit of the amount, on receipt of favorable decision in appeal, under intimation to the Revenue. In the said order, the Tribunal held that there is no dispute about the refund of the pre-deposit of Rs. 40000/-. The only objection raised by the Revenue is that the appellant, instead of taking the refund suo moto, should have approached them. Such refund of pre-deposit accrued to the appellant immediately on passing of the Tribunal’s order allowing their appeal. Such credit was also availed by the appellant, under intimation to the revenue. It is again well settled that the provisions of unjust enrichment or limitation do not apply to such refund of pre-deposited amount. As rightly contended by the appellant, Larger Bench decision in the case of M/s BDH Industries Ltd. [2008 (229) ELT 364 (Tri.-LB)]=(2008-TIOL-1211-CESTAT-MUM-LB) would not strictly apply to the facts of the case in as much as the issue of refund of pre-deposit, on success of appeal, was not the issue under consideration before the Larger Bench. Hence there is no justification in confirming said amount. The impugned orders cannot be upheld. The same were accordingly set aside and the appellant’s appeal was allowed with consequential refund.
They held that there is no dispute about the refund of the amount in issue and appellant had already intimated the Revenue, no reasons to deny the re-credit to the appellant. It is also seen that the appellant filed an application before Asstt. Commissioner which does not stand decided by him even till date. As such to deny the credit to the assessee on the ground that he should have awaited the decision of the Asstt. Commissioner which incidentally does not stand passed by him till date, is neither justified nor fair.
 
 
 
Decision: - Appeal allowed with consequential refund.
 
Comment:- this is very good decision wherein it is held that the manufacturer had already intimated to the department but the department has not taken any action on this letter. Hence the manufacturer can take the credit of the same. Logically also, it seems right that when the appeal is allowed by higher appellate authority then there should not be requirement for permission from the lower authority.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com