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2015 (9) TMI 1025 - AT - Central ExciseRecovery of suo motu credit - credit of pre-deposit taken after a favorable decision without filing refund claim - demand differential duty - Re-classification of goods - Held that:- In the de novo proceedings, the adjudicating authority had limited his findings and ordered recovery by saying that appellants failed to produce any proof of filing refund claim as directed by the Commissioner (Appeals). There is a justification in Ld. consultant's submission that Tsunami attacked the East Coast in 2004 and caused calamity of huge loss of lives and damaged of house, property. That being a case, one cannot brush aside their plea that their office was totally damaged and ravaged by Tsunami and all their records damaged. I find this bonafide reason merits consideration as why they could not produce evidence before the authorities - amount paid is only a deposit during investigation, it is to state that once adjudication authority dropped the proceedings in this case the consequential benefit is automatic in so far as the deposits made by the appellant during pendency of adjudication proceedings. Therefore, the question of refund claim under Section 11B and time-bar and unjust enrichment does not arise. Both the original authority and LAA conveniently overlooked all the above vital facts and held that what is paid by them is duty not paid under protest and also held as time-barred. Amount paid by the appellant is only a deposit pending proceedings initiated by the department and once the said proceedings are dropped, the appellants are entitled for suo motu credit of such deposit. The only lapse of appellants is of not intimating the department of taking such re-credit by writing letter and it is only a procedural lapse and liable to be condoned. The reliance placed by the Revenue in the case of BDH Industries Ltd. (2008 (7) TMI 78 - CESTAT MUMBAI) is not applicable to the present case and clearly distinguishable as the issue referred to Larger Bench was on excise duty paid and taking credit suo motu whereas in the present case as already discussed above the amount paid is only deposit during investigation proceedings. - impugned order upholding the recovery of credit with interest and imposition of penalty is liable to be set aside - Decided in favour of assessee.
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