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2011 (2) TMI 790 - CESTAT, DELHISuo moto re-credit after reversal of cenvat credit - Though the appellant plead that the details of suo moto recredit on 24/5/05 had been reflected in the ER-1 return for the month of May 2005 and on this ground they are pleading the show cause notice is time barred, find that this plea was neither taken before the original Adjudicating Authority nor the same was made before the Commissioner (Appeals) - The question of limitation is a mixed question of fact and law and if this plea has not been taken before the original Adjudicating Authority and Commissioner (Appeals), the same cannot be taken in the course of appeal before the Tribunal - Also find that Larger Bench of the Tribunal in the case of BDH Industries Ltd. vs. CCE (Appeals), [2008 -TMI - 30889 - CESTAT MUMBAI] has held that suo moto refund of excess or twice paid duty cannot be taken and all types of refund claims to have been filed under Section 11B - In this case when the appellant after debiting the Cenvat credit had opted for immunity from further proceedings for imposition of penalty, under the provisions of Section 11A (2B) and having been granted such immunity, they could not again take suo moto credit - The appeal is dismissed accordingly.
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