2010 (12) TMI 1129

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..... of the Revenue is directed against the appellate Commissioner's order granting a refund to the respondent. The respondent paid an amount of ₹ 64,922/- towards Central Excise duty and education cess on certain quantity of scrap generated at their job worker's premises. The job-worker had disposed of the scrap instead of returning the same to the respondent. They had not paid duty of excise on the scrap. When the Central Excise Range Superintendent visited the respondent's factory for verification of statutory documents, the respondent admitted that they had not received the scrap from the job-worker or paid duty thereon. In a letter dated 17-3-2005, the respondent also accepted the duty liability and undertook to furnish a worksheet t .....

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..... pecifically' claimed refund and that the amount of ₹ 64,922/- deposited by them was not duty. The learned SDR has reiterated this grievance. It is submitted that the respondent had categorically accepted the duty liability and, accordingly, debited the amount in PLA account and, therefore, it cannot be held that the amount deposited by them is not duty. The learned counsel for the respondent has opposed this argument of the SDR. According to him, the request for refund as incorporated in the reply to the show cause notice was rightly treated as a refund claim in the appellate Commissioner's order. The learned counsel has also furnished a copy of the respondent's reply to the show cause notice wherein, I come across an averment reading .....

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..... g found the aforesaid payment made by the respondent to be a payment towards Central Excise duty and education cess on the scrap in question, I must hold that any claim for its refund should have been made under Section 11B of the Central Excise Act by following the prescribed procedure. This did not happen in the present case. The view taken by the lower appellate authority is beyond the statutory scheme. I am not impressed with the submission of the learned counsel that the respondent was not aware of the procedure at the material time. Indisputably, the respondent has been in the business of manufacture of machines for over a decade and hence cannot be expected to be ignorant of the Central Excise provisions and procedures. 7. In t .....

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