TMI Blog2013 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... SIONER OF C. EX. (APPEALS), MUMBAI-I [2008 (7) TMI 78 - CESTAT MUMBAI] - taking of suo motu credit by the appellant was not in accordance with the law. CCE Versus M/s HARI CHAND SHRI GOPAL [2010 (11) TMI 13 - SUPREME COURT OF INDIA] - a provision for exemption, concession or exception, as the case may be, has to be construed strictly and if the exemption is available only on complying with certain conditions, the conditions have to be complied with - detailed procedures have been laid down in Chapter X of the Rules, so as to curb the diversion and mis-utilization of goods which are otherwise excisable and the plea of substantial compliance or intended use therefore has to be rejected – order set aside – Penalty upheld – Decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit account vide entry made in November 2002. 2.2. A show-cause notice was issued on 22/10/2003 to the appellant alleging that there is no provision for suo motu taking of the credit in the Cenvat credit account and proposing to recover the Cenvat credit of Rs.68,159/- wrongly taken by them along with interest under Cenvat Credit Rules, 2002 also proposing to impose penalties. The notice was adjudicated vide order dated 22/12/2003 wherein the adjudicating authority disallowed the Cenvat credit of Rs.68,159/- and ordered for the recovery of the same under Rule 12 of the Cenvat Credit Rules, 2002 along with interest thereon under Section 11AB of the Central Excise Act, 1944. He also imposed a penalty of Rs.5,000/- under the provisions of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment's only allegation in the show-cause notice is that credit has been taken without duty paying documents. This allegation is not relevant to this case and on this ground alone the order does not survive. Even otherwise while taking credit, the appellants have mentioned the debit entry particulars. There being no other allegation in the show-cause notice, the re-credit cannot be disallowed . 3. In their appeal memorandum, the Revenue has urged that whenever a payment of duty is paid wrongly, the only way to claim refund of the payment wrongly made is as per the provisions of Section 11B of the Central Excise Act, 1944 as held by this Tribunal in the case of Preena Cables Pvt. Ltd. - 2004 (168) ELT 120 (Tri-Mum), Albert David Ltd. - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down under Section 11B of the Central Excise Act needs to be scrupulously followed. In the present case these conditions are not satisfied. Therefore, the impugned order is bad in law and the respondent is not eligible for suo motu credit; hence, he prays for setting aside the order of the Commissioner (Appeals) and restoring the order passed by the adjudicating authority. 4. The Ld. Counsel for the respondent, on the other hand submits that the payment was made by them initially as per the direction of the Superintendent. It is a fact that at that time, they did not make the payment under protest. Subsequently, when the clarification was issued in July, 2001, in the light of the Board's Circular, they realized that they were not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , concession or exception, as the case may be, has to be construed strictly and if the exemption is available only on complying with certain conditions, the conditions have to be complied with. In the aforesaid decision, the constitution bench further held that detailed procedures have been laid down in Chapter X of the Rules, so as to curb the diversion and mis-utilization of goods which are otherwise excisable and the plea of substantial compliance or intended use therefore has to be rejected . The ratio of the said decision in this present case also. 5.2. In view of the above, we find that the impugned order passed by the lower appellate authority is not in accordance with the law. Accordingly, we set aside the same and allow the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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