TMI Blog2015 (9) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjudication proceedings. Therefore, the question of refund claim under Section 11B and time-bar and unjust enrichment does not arise. Both the original authority and LAA conveniently overlooked all the above vital facts and held that what is paid by them is duty not paid under protest and also held as time-barred. Amount paid by the appellant is only a deposit pending proceedings initiated by the department and once the said proceedings are dropped, the appellants are entitled for suo motu credit of such deposit. The only lapse of appellants is of not intimating the department of taking such re-credit by writing letter and it is only a procedural lapse and liable to be condoned. The reliance placed by the Revenue in the case of BDH Industries Ltd. (2008 (7) TMI 78 - CESTAT MUMBAI) is not applicable to the present case and clearly distinguishable as the issue referred to Larger Bench was on excise duty paid and taking credit suo motu whereas in the present case as already discussed above the amount paid is only deposit during investigation proceedings. - impugned order upholding the recovery of credit with interest and imposition of penalty is liable to be set aside - Decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of credit. Hence the present appeal. 4. Heard both sides. 5. The Ld. Consultant for the appellant submits that they have taken suo motu credit after the favourable order from the Commissioner of Central Excise. He submits that they have paid a lump sum amount- in the month of July'97 during pending proceedings by debiting cenvat credit in their RG.23A Part II and RG.23C Part-II. He further submits that payments were made under protest and they took re-credit on 30.11.2003 only after receipt of the Commissioner's order. He also submits that they have also filed refund claim under Section 11B and the Commissioner (Appeals) in his first order remanded the case to the adjudicating authority to verify the fact of filing the refund claim. He submits that they could not trace out the copy of the refund claim in their office as the entire factory and office premises were damaged by Tsunami attack in December 2004 and all their documents and records were totally washed out. He also submits that they requested the department but they also could not trace out the copy. He further submits that what was paid by them is not Excise Duty on the clearance of goods but as a lump sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent on dismissal of Revenue's appeal by the Hon'ble Supreme Court in the case of UOI Vs Pesticides Manufacturing and Formulators Associations of India - 2002 (146) ELT 19 (SC), the Commissioner of Central Excise dropped the entire demand proceedings of the period from July 1996 to December 1999 vide OIO dt. 29.8.2003. 9. I find that during the pendency of proceedings the appellants paid lump sum amount of ₹ 33,38,695/- in July'97 vide RG-23 Part-II and RG-23 Part-II and they took suo motu re-credit on 30.11.2003 after receipt of the above order. 10. The Department's contention for ordering recovery of the said credit is that appellants have not preferred refund claim under Section 11B and not paid duty under protest as per Rule 233B of Central Excise Rules and the claim is time-barred and the appellant failed to produce any documentary evidence of refund claim already filed before Department. On perusal of the first OIO dt. 29.8.2003 passed by Commissioner of Central Excise relating to demand of excise duty, it is pertinent to reproduce the para-2 of the said OIO as under :- On intelligence the officers of DGAE, Chennai and Officers of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July'97 and other two payments were made without any protest. It is to be seen that major amount of ₹ 26,51,215/- was paid on 9.7.97. If the facts stated at para (2) of first OIO dt. 29.8.2003 and facts mentioned at para (4.4) of OIO dt. 13.6.2005 are read together, it is clearly evident that the appellant was made to pay duty on 9.7.97 by debit in RG 23 account during investigation carried out by DGCEI on 9.7.97. Therefore, it is proved beyond doubt that the lump sum amount paid by the appellant during investigation is not the duty amount calculated by the department but only deposit made by the appellants pending investigation proceedings. It cannot be construed that the appellants paid excise duty. This is supported by the Tribunal's decision in the case of Gujarat Engineering Works Vs CCE - 2013 (292) ELT 547 (Tri.-Ahmd.) wherein the Tribunal by relying Hon'ble High Court of Gujarat decision held that amount deposited during investigation cannot be treated as duty to apply provisions of Section 11B. The relevant portion of order is reproduced as under :- 7. The first appellate authority in the impugned order has come to a conclusion that the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal book, I find that appellants have clearly written at the relevant entry Sl.nos that duty debited under protest which is sufficient to hold that the payments are not voluntary in the case 2 entries the word protest is not mentioned obviously for the reason that the major amount was debited on 9.7.97 when investigating officers were present in their premises and made the recovery. In the de novo proceedings, the adjudicating authority had limited his findings and ordered recovery by saying that appellants failed to produce any proof of filing refund claim as directed by the Commissioner (Appeals). There is a justification in Ld. consultant's submission that Tsunami attacked the East Coast in 2004 and caused calamity of huge loss of lives and damaged of house, property. That being a case, one cannot brush aside their plea that their office was totally damaged and ravaged by Tsunami and all their records damaged. I find this bonafide reason merits consideration as why they could not produce evidence before the authorities 13. Having held that the amount paid is only a deposit during investigation, it is to state that once adjudication authority dropped the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears totally unwarranted. While no sanction to the procedural violation can be allowed as a matter of interpretation of the Rules, in the peculiar facts and circumstances of the case, I hold that the order of the Commissioner (Appeals) need not be upheld and the order of the original authority deserves to be restored. This view has been taken as the Department was under obligation to implement the earlier order of the Commissioner (Appeals) dated 6-10-04 which was allowed with consequential relief. 16. In view of the above Tribunal decisions, it is clearly proved that the amount paid by the appellant is only a deposit pending proceedings initiated by the department and once the said proceedings are dropped, the appellants are entitled for suo motu credit of such deposit. The only lapse of appellants is of not intimating the department of taking such re-credit by writing letter and it is only a procedural lapse and liable to be condoned. The reliance placed by the Revenue in the case of BDH Industries Ltd. (supra) is not applicable to the present case and clearly distinguishable as the issue referred to Larger Bench was on excise duty paid and taking credit suo motu whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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