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2019 (4) TMI 1344 - AT - Central ExciseSuo moto credit of excess duty paid or refund claim - the only ground of Revenue is that in view of the ruling of Larger Bench in the case of BDH INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX. (APPEALS), MUMBAI-I [2008 (7) TMI 78 - CESTAT MUMBAI] wherein this Tribunal held that all types of refunds have to be filed under Central Excise Act and Rules made thereunder and no suo-motu credit of the duty paid in excess may be taken by the assessee. HELD THAT:- The Larger Bench had taken the view with regard to the provisions of unjust enrichment. Whereas in the present case, there is no such dispute of unjust enrichment as the appellant was allowed rebate after taking in to consideration the element of unjust enrichment. Accordingly, the facts herein are different and the ruling in the case of BDH Industries of Larger Bench of this Tribunal is not attracted. The matter relates to rectification of mistake, both on the part of the assessee as well as the Department. Thus rectification has to be carried out in full - By sitting tight on the repeated request of the assessee to take back the Cenvat Credit was unjust and unfair under the facts and circumstances. The SCN is misconceived and an abuse of the provisions of the scheme of the Central Excise Act and the Rules - Appeal dismissed - decided against Revenue.
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