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2011 (10) TMI 304 - AT - Central ExciseRefund of duty – Period of limitation – suo-moto credit availed of duty paid under original invoices cancelled – subsequently paid the duty related to original invoices and refund claimed – Refund granted by lower authority on ground that no limitation was prescribed in the Central Excise Act for refund claim of the above kind - Held that:- In case of BDH Industries Ltd. Vs. CCE (A), Mumbai-I (2008 - TMI - 30889 - CESTAT Mumbai) it was held that no suo motu credit of any duty paid in excess could be taken by the assessee and that all types of refund claims required to be filed u/s 11B of the Central Excise Act. In view of aforesaid decision the suo motu credit taken in April 2007 has to be treated as non est in law. Hence, refund claim filed by the assessee on 5.12.2007 was undisputedly for an amount of duty covered by two invoices of November 2006 which were cancelled by them. 'Relevant date' u/s 11B of the Act for purposes of refund claim in question is thus 05.12.06. None of the authorities took note of the Tribunal's Larger Bench decision. Therefore, Order granting refund is absurd & liable to be set aside.
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