TMI Blog2012 (7) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... which penalty of Rs.10,000/- imposed - penalty imposed on the appellant by the Ld.Commr. (Appeal) is set aside - Appeal partly allowed. - Excise Appeal No.-219/2011 - - - Dated:- 7-6-2012 - DR.D.M. MISRA, J. Sri L.R. Deb, Consultant FOR APPELLANTS Sri S. Chakraborty, A.C. (A.R.) FOR THE RESPONDENTS Per DR.D.M. MISRA This is an appeal filed against the order in appeal No. 15/Kol-V/2011 dated- 31.01.2011. Briefly stated facts of the case are that the appellant are engaged in the manufacture of Gear Box and Geared Motor as well as spares falling under Chapter 85 of CETA, 1985. The appellant had removed excisable finished products during the period 20th January, 2006 to 16th June, 2007 by availing exemption under Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Commr. (Appeal) denying them suo motto credit of Rs.4,79,837/- and imposition of penalty of Rs.10,000/-, the appellant is in appeal before this Tribunal. 2. Ld. Consultant Shri L.R. Deb appearing for the appellant has submitted that it is not in dispute that during the relevant period, the amount has been paid by them by debiting their PLA even though they are not required to pay 10% of the price of the exempted goods being covered under clause (iv) of Sub Rule (6) of Rule 6 of Cenvat Credit Rules, 2004. The said demand was paid under a mistake and hence they are entitled to take suo-motu credit of the said amount in view of settled principle of law even though no such provision has been available under the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Heard both sides and perused the records. I find that it is not in dispute that the appellant has wrongly paid 10% of the price of the finished goods under sub-rule (6) of Rule 6 of Cenvat credit Rules even though they were not required to pay the said amount being covered under clause (iv) of sub-rule (6) of Rule 6 of said Cenvat Credit Rule. Also, it is not in dispute that they have taken suo motu credit of the said amount in their PLA on 15.11.2007 without filing any intimation to the Department of taking such suo motu credit of the erroneous payment made during 20.1.2006 to 16.6.2007. Also, they have not filed any refund claim seeking refund of the said erroneous payment but have directly and unilaterally taken suo motu credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. A plain reading of the ratio of the said judgment makes it crystal clear that any excess payment made to the Department ought to be claimed by filing a refund claim as prescribed under Section 11B of the Central Excise Act. The Tribunal has been categorical in observing that suo motu credit of the amount erroneously paid is not authorized under the Central Excise Act and Rules made thereunder. In these circumstances, I do not find merit in the submission of the Ld. Consultant that they are allowed by the settled principles of law to avail suo motu credit on the amount paid by them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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