J.K. LAKSHMI CEMENT LTD. Vs. C.C.E. & S.T., JAIPUR-II
LAWS(CE)-2015-3-96
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on March 25,2015

J.K. Lakshmi Cement Ltd. Appellant
VERSUS
C.C.E. And S.T., Jaipur -Ii Respondents


Referred Judgements :-

CCE,BANGALORE -III V. MOTOROLA INDIA PVT. LTD. [REFERRED TO]
BDH INDUSTRIES LTD. V. CCE (APPEALS),MUMBAI -I [REFERRED TO]
COMMISSIONER V. S. SUBMMANYAN & CO. [REFERRED TO]
ESDEE PAINTS LTD. VS. COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD [REFERRED TO]
S. SUBRAHMANYAN & CO. VS. COMMISSIONER OF C. EX., VADODARA [REFERRED TO]
SOPARIWALA EXPORTS PVT. LTD. VS. COMMISSIONER OF C. EX., VADODARA-I [REFERRED TO]


JUDGEMENT

ASHOK JINDAL, MEMBER (J) - (1.)THE appellant is in appeal against the impugned order wherein the suo motu credit taken by them has been denied both the lower authorities. The facts of the case are that during the period March, 2005 to March, 2006, the appellant utilized their cenvat credit amount for payment of output transportation service. As there was a Circular No. , dated 23 -8 -2007 which directs that on output transportation service the service tax is to be paid in cash. But, the appellant utilized cenvat credit account for payment of the service tax, therefore, proceedings were initiated against the appellant and the adjudicating authority directed the appellant to pay service tax in cash. Against the said order, the appellant filed an appeal before the ld. Commissioner (Appeals) who directed to make a pre -deposit of the entire amount of service tax in dispute in cash which appellant complied with on 29 -8 -2011 and thereafter immediately he has taken the suo motu credit on 30 -8 -2011 of the service tax paid through cenvat credit account. Thereafter, a show cause notice was issued on 24 -8 -2012 to deny the suo motu credit taken by the appellant. Both the lower authorities denied the suo motu credit to the appellant, therefore, appellant is before me.
(2.)Shri K.K. Anand, ld. counsel for the appellant appeared and submits that the appellant has paid service tax through their cenvat credit account as well as in cash. Therefore, the service tax has been paid twice by them and they have taken suo motu credit thereof. In these circumstances, the short issue is for consideration is that the appellant is entitled for suo motu credit or not in the circumstances of the case. He also submits that the appellant is entitled to take suo motu credit. To support this contention he relied on the decisions in Esdee Paints Ltd. v. CCE, Ahmedabad -, 2010 (249) E.L.T. 225 (Tri. Ahmd.), S. Subrahmanyam & Co. v. CCE, Vadodara - : 2011 (268) E.L.T. 497 (Tri -Ahmd.) which has been affirmed by Hon'ble High of Gujarat reported in Commissioner v. S. Submmanyan & Co. -, 2013 (296) E.L.T. A123 (Gujarat), Sopariwala Exports Pvt. Ltd. v. CCE, Vadodra -I - : 2013 (291) E.L.T. 70 (Tri. Ahmd.), CCE, Bangalore -III v. Motorola India Pvt. Ltd. -, 2006 (206) E.L.T. 90 (Kar.). He also submits that the Larger Bench decision of this Tribunal in the case of BDH Industries Ltd. v. CCE (Appeals), Mumbai -I -, 2008 (229) E.L.T. 364 (Tri. -LB) in the said case this Tribunal has not considered the decisions of the Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (supra). Therefore, he prayed that issue is no more res Integra and impugned order be set aside.
(3.)ON the other hand, ld. AR opposed the contention of the ld. counsel and submits that as per C.B.E. & C. Circular No. , it is a cleared mandate that for output transportation service, service tax is payable in cash. Therefore, the appellant required to pay service tax in cash. Further, in compliance the direction of the ld. Commissioner (Appeals), they have paid the service tax in cash. But they have gone one step further by taking suo motu credit which was the subject matter at that time. Therefore, show cause notice required to be issued for taking suo motu credit by the appellant. It is also submitted that issue has been examined by the ld. Commissioner in detail and observed as under:
On going through the chronology of the case, it is seen that during the period March, 2005 to March, 2006 the appellant had paid service tax on GTA amounting to Rs. 37,86,455/ - by utilizing Cenvat credit. The department objected to this, issued show cause notice C. No. V(25) 15/Off/Adj -II/JPR -11/228/08/928, dated 6 -3 -2009. The show cause notice was adjudicated and the appellants were asked to pay tax in cash. Rather than paying the service tax in cash, the appellants preferred and appeal before Commissioner (Appeals) who directed to them to make a pre -deposit of the disputed amount in cash vide stay order No. 96 (CB) Service Tax/JPR -II. The appellants in compliance with the stay order, paid the amount in cash on 29 -8 -2011 but on 31 -8 -2011, on their own took re -credit of amount debited earlier. The Commissioner (Appeals) while disposing of the appeal rejected it vide OIA dated 27 -11 -2012 on the ground that the suo motu re -credit was not allowed. Against the rejection of appeal by the Commissioner (Appeals) vide OIA dated 27 -11 -2012, the appellants should have filed an appeal before the Tribunal and they might have done so. Rather than enforcing the OIA issued by the Commissioner (Appeals), the Addl. Commissioner issued another show cause notice questioning suo motu re -credit under C. No V. 925 Adj -I/JPR -11/242/2012/2127, dated 24 -8 -2012 and adjudicated the same under OIO No. 10/2012 what is subject matter of the appeal. It is obvious from the factual matrix constructed about that soon after getting OIA, dated 27 -11 -2012 the appellants' should have paid back the re -credit taken suo motu and filed proper refund claim or filed appeal against the OIA. For the Department also there was no need to issue another show cause notice but should have recovered the amount. On merit also, the action of appellant in re -crediting of amount after paying the GTA service tax in cash in compliance with stay order of the Commissioner (Appeals) was wrong and legally incorrect. The stay order only directed the appellants to pay in cash and did not permit re -credit of an equal amount. Therefore, the appeal cannot succeed, hence rejected.

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