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2016 (5) TMI 895 - CESTAT KOLKATARejection of refund claim - duty was paid twice, once from cash and again from cenvat credit - Whether suo-motu credit of ₹ 3,46,820/ taken by the appellant on 28/2/2011 was legally correct or appellant was required to file a refund claim under Sec 11B ibid - Held that:- by relying on the decision of Larger Bench of the CESTAT in the case of BDH Industries Ltd. Vs. CCE (Appeals) Mumbai-I [2008 (7) TMI 78 - CESTAT MUMBAI] whose decision was taken by relying upon the ratio laid by Supreme Court in the case of Mafatlal Industries Ltd Vs UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA], suo-motu credit of duty paid excess / twice can not be taken & a refund claim was required to be filed. However, as the issue was disputable & conflicting views were expressed by the court's penalty imposed upon the appellant is not justified and is set aside. Period of limitation - Whether “relevant date” for the purpose of calculating period of limitation under Sec 11B of the Central Excise Act 1944 should be calculated from 16/3/2012 (the date appellant paid the amount at the instance of the department) or 31/1/2011 when duty was paid twice by the appellant - Held that:- by respectfully following the ratio laid down by the CESTAT Ahmedabad in the case of Neptune Industries Ltd Vs CCE Ahmedabad [2011 (12) TMI 368 - CESTAT, AHMEDABAD] and Raj Petro Specialties P. Ltd Vs CCE Vapi [2009 (5) TMI 603 - CESTAT, AHMEDABAD], it is held that 'relevant date' for filing the refund claim in the existing facts will be 16/3/2012 and accordingly refund claim was not time barred. - Decided in favour of appellant with consequential relief
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