9911796707
TMI Blog2011 (10) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ltd., Hyderabad as per two invoices described below. Invoice No. & Date Value Basic Excise Duty Education Cess 73 & dt.10.11.2006 Rs.1,10,000/- Rs.17,600/- Rs.352/- 75 & dt. 16.11.2006 Rs.5,48,056/- Rs.87,689/- Rs.1,754/- (ii) The assessee realised their mistake in computation of the assessable value of the goods and raised fresh invoices described below and paid Central Excise duty and Education Cess totalling to Rs.99,281/-, after canceling the earlier invoices. Invoice No. & Date Value Basic Excise Duty Education Cess 80 & dt.12.12.2006 Rs.1,01,688/- Rs.16,270/- Rs.326/- 81 & dt.15.12.2006 Rs.5,06,648/- Rs.81,064/- Rs.1,621/- (iii) In the month of April 2007, they suo motu took credit of Rs.1,07,395/- in their CENVAT acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee. This view stands upheld by the Commissioner (Appeals). It is nobody's case that the refund claim in question was not filed under Section 11B of the Central Excise Act. It was very much a claim for refund of duty filed under Section 11B of the Act. This provision of law clearly prescribed a period of limitation for refund claim and, therefore, there was no warrant for applying any other provision of law to the refund claim filed by the respondent. On this sole ground, the orders of the lower authorities are liable to be set aside. 3. It was clearly alleged in the show-cause notice that the refund claim filed on 5.12.2007 was beyond the prescribed period of one year from the relevant date viz., 5.12.2006. Before me, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under Section 11B of the Central Excise Act. Reverting to the real issue, I find that the refund claim filed by the assessee on 5.12.2007 was undisputedly for an amount of duty covered by two invoices which were cancelled by them. That duty was paid in the month of November 2006. In view of the Tribunal's Larger Bench decision, the suo motu credit taken in April 2007 has to be treated as non est in law. The cash payment of duty on 30.11.2007 was not warranted in a situation where the suo motu credit should be considered to be non est. Therefore, prima facie, it would appear that the refund claim filed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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