2018 Taxo.online 508

R/SPECIAL CIVIL APPLICATION NO. 18263 of 2018 dated 03.12.2018

KAIZEN SWITCHGEAR PRODUCTS

UNION OF INDIA

2018

GST

Central Goods and Service Tax Act, 2017

Harsha Devani, Justice & A. P. Thaker, Justice

Interim

High Court

Gujrat

Represented by: – 

Petitioner: – Gupta Law Associates 

Respondent: –  

Order: – 

1. The rebate claim of the petitioner has been rejected by the Commissioner (Appeals) on the ground that the EOUs do not have option to pay duty and thereafter claim rebate of duty paid. Mr. Paritosh Gupta, learned advocate for the petitioner, invited the attention of the court to various orders passed by the revisionary authority, whereby the order of the Commissioner (Appeals) has been upheld, but at the same time, the request of the concerned applicant to permit re-credit of the Cenvat credit in their Cenvat account has been allowed, by observing that the amount so paid by the concerned applicant is to be treated as voluntary deposit with the department and the same is to be returned the way it was initially paid. Accordingly, the Government has directed the excess paid amount to be allowed to be re-credited in the Cenvat account. It was submitted that despite the fact that the revision application was filed before the revisionary authority on 18th April, 2013, the same was not decided despite various reminders being addressed to the concerned authority. In the meantime, since the Central Goods and Service Tax Act, 2017 was to come into force with effect from 01.07.2017 and the Cenvat credit would have become infructuous, the petitioner suo motu took the credit of such amount and thereafter, sought permission to withdraw the revision application. However, the revisionary authority has held that taking suo motu re-credit on part of the petitioner is illegal and has directed the original adjudicating authority to initiate action for recovery of unauthorized credit taken suo motu by the petitioner. 
2. The learned advocate has submitted that when it is the settled view taken by the revisionary authority that the applicants should be permitted to take re-credit of the amount in their Cenvat credit account, the revisionary authority is not justified in directing recovery of such amount only because in the light of the peculiar circumstances the petitioner has suo motu taken re-credit of such amount. It was also submitted that the entire situation is revenue neutral. 
3. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 27th December, 2018. By way of ad-interim relief, the respondents are restrained from making any coercive recovery against the petitioner pursuant to the impugned order. 

Direct Service is permitted.