TMI Blog2011 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... rger Bench of the Tribunal in the case of BDH Industries Ltd. vs. CCE (Appeals), [2008 -TMI - 30889 - CESTAT MUMBAI] has held that suo moto refund of excess or twice paid duty cannot be taken and all types of refund claims to have been filed under Section 11B - In this case when the appellant after debiting the Cenvat credit had opted for immunity from further proceedings for imposition of penalty, under the provisions of Section 11A (2B) and having been granted such immunity, they could not again take suo moto credit - The appeal is dismissed accordingly. - E/1993 of 2008 (SM) - - - Dated:- 10-2-2011 - Hon'ble Shri Rakesh Kumar, Member (Technical) Appearance Shri Ashutosh Agarwal, Advocate for the appellant. Smt. Rim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit was discovered and accordingly a show cause notice was issued for recovery of this amount alongwith interest, invoking extended period and also imposing penalty under Rule 15 of Cenvat Credit Rules, 2004 readwith Section 11AC of Central Excise Act, 1944. The show cause notice was adjudicated by the Assistant Commissioner vide order-in-original No. 87/Demand/ACK-I/2007 dated 26/2/2008 by which the Cenvat credit demand of Rs. 2,59,626/- was confirmed alongwith interest and beside this, penalty of equal amount was imposed on the appellant. On appeal to Commissioner (Appeals), the Commissioner (Appeals) in the impugned order-in-appeal dated 29/5/08 dismissed the appeal. It is against this order of the Commissioner (Appeals) that the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, not correct. 2.2 Mrs. Rim Jhim Prasad, the learned Departmental Representative, pleaded that the amount had been debited by the appellant voluntarily on 10/3/05 when the officers in the course of inspection found that certain invoices on their back were bearing signed endorsement regarding short receipt of the material but still the Cenvat credit had been taken on the full quantity mentioned in the invoice, that the appellant had voluntarily debited the Cenvat credit on 10/3/05 and subsequently under their letter dated 14/5/05 to the Department, once again admitting their mistake of taking Cenvat credit on the short received quantity, sought immunity from the issue of show cause notice and imposition of penalty as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed amount in respect of short receipt of the inputs. There is no dispute that the appellant vide their letter dated 14/5/05 also confirmed the short receipt of the inputs and sought immunity from the issue of show cause notice and imposition of penalty in terms of the provisions of Section 11A (2B) of Central Excise Act. In view of this background, if subsequently they felt that there was no shortage of the inputs, and credit was not required to reversed by them, they should filed the refund under Section 11B as, as per the provisions of Section 11B, the refund for wrongly debited Cenvat credit can also be claimed. But instead of doing this, they took suo moto credit on 24/5/05. Though the appellant claim that they had informed the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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