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2011 (9) TMI 685 - AT - Central ExciseRefund - As no refund was granted to the appellant in terms of the aforesaid order, the appellant took suo motu credit of Rs. 2,29,646/- in their PLA account vide entry No. 1, dated 25-4-2007 and utilized the said amount for payment of duty on excisable goods manufactured and cleared by them, during the month of May, 2007 - Tribunal in the case of BDH Industries (2008 -TMI - 30889 - CESTAT MUMBAI) have held that there is no provision under the Central Excise Act, 1944 and the Rules allowing suo motu taking of credit or refund without sanction by the proper officer and, therefore, the findings of the appellate authority in the impugned order upholding the recovery of the suo motu refund taken is correct in law and has to be sustained Regarding penalty - there was no suppression or wilful misstatement of facts on the part of the appellant to evade any duty or claim any ineligible refund. It is a fact that the appellant was eligible for refund in terms of the order-in-appeal dated 30-3-2007, which the department did not grant - There is no mala fide on the part of the appellant and, therefore, imposition of equivalent amount of penalty under Section 11AC read with Rule 25 of tine Central Excise Rules, 2002 is not warranted and, accordingly, I set aside the penalty imposed on the appellant by the lower appellate authority - Decided against the assessee
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