Suo Moto Re-credit Not At Par Refund Claim Under Section 11B
Where , an assessee originally availed the Cenvat Credit on service tax or excise duty but , for sound reasons, it reversed the credit then in such cases, there is only an account entry reversal .
Factually there is no outflow of funds from the assessee to result in filing of a refund application under Section 11B of the Central Excise Act, 1944 claiming refund of excise duty or service tax .
Taking of re-credit on the basis of available documents, without disputing their genuineness, cannot be equated with the case of self refund.
No Permission Required Before Debit Entry
There is no stipulation in the Cenvat statute that an assessee is required to obtain prior permission from the jurisdictional Central Excise authorities for making any debit entry in the Cenvat records.
Hence, in absence of any specific prohibition to that effect, it is not appropriate to disallow the Cenvat benefit, to which the respondent is statutorily entitled to.
Non Applicability of Unjust Enrichment
Even in reversal of the entry , unjust enrichment has no applicability since, what is availed off by the assessee is only a credit on the duty paid .
ICMC Corporation Ltd. Versus The Customs, Excise and Service Tax Appellate Tribunal- 2014 (302) E.L.T. 45 (Mad.)
NOCIL Versus COMMISSIONER OF CENTRAL EXCISE -2014 (2) TMI 500 – CESTAT MUMBAI
Ultra Tech Cement Limited vs. CCE, Tirupati – 2010 (261) ELT 696 (Tri. Bang.)
by Anand Mishra, Founder Advocate, AMLEGALS
( The author is a leading advocate and handling cases in Tribunals & High Courts of India . He can be contacted on firstname.lastname@example.org .For more please refer www.amlegals.com )