Commissioner of CGST & C. Ex, Kolkata-IV Versus M\/s. Sheela Foams Pvt. Ltd.
Central Excise
2018 (12) TMI 713 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 2-5-2018
Appeal No. E\/76956\/2017 – FO\/76545\/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
\nShri K. Choudhury, Suptd. (AR) for the Appellant (s)
\nShri Pravin Sharma, Advocate for the Respondent (s)
\nORDER
\nPer Shri P.K. Choudhary
\n1. Briefly stated the facts of the case are that the M\/s. Sheela Foams Pvt. Ltd., the respondent herein having their factory premises at Durgapur Express Way, P.O.- Dankuni Coal Complex, Hooghly-712310 and are engaged in manufacture of PU Foam Sheets, PUF Sofa and Bed, PUF Mattress, PUF Pillow & Coir Mattress classifiable under Chapter 39 & 94 of the First Schedule to the Central Excise Tariff Act, 1985. The respondent assessee availed benefit of Notification No.01\/2011-CE dated 01.03.2011 on Coir Mattress and paid Central Excise duty @1% Adv [2% Adv w.e.f. March, 2<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ter dated 17.01.2013. Show Cause Notice dated 'Nil' was issued alleging contravention of the provisions of Rules 3 and 9 of Cenvat Credit Rules, 2004 and Rule 8 of Central Excise Rules, 2002. The Adjudicating Authority confirmed the demand of Rs. 13,31,116\/- alongwith interest and also imposed equal penalty under Rule 15(2) of the Cenvat Credit Rules, 2004. On appeal filed by the assessee, the Ld. Commissioner (Appeals) allowed the appeal. Hence, Revenue is in appeal before the Tribunal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n . It is also not in dispute that the respondent assessee was eligible for refund. The only dispute was that whether the re-credit could be taken suo moto or a refund claim was required to be filed. Thus under the facts and circumstances of the case no penalty is imposable. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ll those refund claims where unjust enrichment has to be examined. Such refund claims will mean cash refunds or where duty is paid at the time of clearance. It is a settled law now that unjust enrichment is not applicable where refund is that of penalties or pre-deposits made in the appellate proceedings. Therefore, judgment of Hon'ble Supreme Court in the case of Mafatlal Industries Limited. case is not applicable to the facts and circumstances of this case, where the issue involved is only taking of an admissible cenvat credit on receipt of a favourable order. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Commissioner of CGST & C. Ex, Kolkata-IV Versus M\/s. Sheela Foams Pvt. Ltd.Central Excise2018 (12) TMI 713 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 2-5-2018Appeal No. E\/76956\/2017 – FO\/76545\/2018Central ExciseShri P.K. Choudhary, Member (Judicial) Shri K. Choudhury, Suptd. (AR) for the Appellant (s) Shri Pravin Sharma, Advocate for the Respondent (s) ORDER Per Shri … Continue reading “Commissioner of CGST & C. Ex, Kolkata-IV Versus M\/s. Sheela Foams Pvt. Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-15502","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15502","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15502"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15502\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15502"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15502"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15502"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n2. Ld. DR reiterates the grounds of appeal and submits that there is no provision under the Central Excise Act and Rules allowing suo moto taking of credit or refund without sanctioned by the proper officer.
\n3. Ld. Advocate appearing on behalf of the respondent assessee submits that once duty is paid in cash, the assessee is entitled for re-credit of the amount paid through cenvat account. It is his submission that the Tribunal in various cases have consistently held that this reversal amounts to cor<\/p>\n
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\n6. I find that the issue is covered by the decision of the Tribunal in the case of Commissioner of Central Excise, Surat-II vs. Vardhman Acrylics Ltd. [2013(292) E.L.T. 558 (Tri.-Ahmd.)]. The relevant portion of the Tribunal's decision are reproduced.
\n“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). Appellantdepartment 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 S<\/p>\n
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\n7. Similarly, in the case of Vighnahar SSK Limited v. CCE, Pune (supra), it was held that refund claim was required to be filed so that the same could pass the test of unjust enrichment. In the instant case, the Cenvat credit was reversed before the issue of show cause notice. It is settled law now that once Cenvat credit taken is re<\/p>\n
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