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2011 (9) TMI 441 - AT - Central ExciseSuo motu credit or refund without sanction - In view of Sahakari Khand Udyog (2005 - TMI - 47234 - SUPREME COURT OF INDIA), all types of refund have to be filed under Section 11B of the Central Excise Act and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. Capital goods cleared - Held That:- there is no clear finding whether the return of the capital goods by the respondent to the supplier was actually made on payment of duty, whether by way of debit in CENVAT account or otherwise, in April 2006. However, it is not in dispute that statutory invoices were raised on 13.02.2007 for payment of duty on the capital goods without clearance of the goods or following the Central Excise procedure. Almost soon after the raising of these invoices, the respondent took suo motu credit of an equivalent amount in their CENVAT account. This conduct of the party would suggest that the raising of the invoices on 13.02.2007 was consciously done as preparatory to suo motu credit. - order-in-original does not disclose any clear finding Case remanded back.
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