TMI Blog2015 (12) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... of RG 23A Part-II cannot be treated as deposit. The same is depicted in their statutory books and returns as duty. Revenue has also accounted the same as duty. Payment of duty through PLA or cenvat credit is treated at par. The nine Member Bench of the Hon'ble Supreme Court in the case of Mafatlal Industries Limited (1996 (12) TMI 50 - SUPREME COURT OF INDIA) has held that whatever amount has been paid to the department has to be claimed back if eligible by the route of refund under Section 11B, except for those payments which are ultra-vires. The Tribunal in the case of BDH Industries Limited (2008 (7) TMI 78 - CESTAT MUMBAI) has gone into the issue in detail and has held that such suo-moto re-credit cannot be taken The decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the month of March 2007. The reason why they made the said payment voluntarily was to avoid future liability of interest in case the demands were confirmed against them in the adjudication proceedings. However, later on, in September 2008 and October 2008, the appellant decided that this payment of ₹ 26 Crores was not warranted and therefore, they took suo-moto credit of the same amount in RG 23A Part-II. The said amount in their books was later utilised for payment of duty. The department took objection to availing of credit suo-moto and issued show cause notice dated 09.10.2009 on the ground that the there was no provision for taking such suo-moto credit and the appellants were not legally empowered to do so. The said show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shyam Textile Mills Ans. vs. UOI -2005 (67) RLT 488 (Guj). (c) Sopariwala Exports Pvt. Limited vs. CCE - 2013 (291) ELT 70 (Tri.) 3. On the other hand, learned Additional Commissioner (Authorised Representative) for Revenue submits that the appellants have paid the amount of ₹ 26 Crores against the demands raised against them vide the two show cause notices. The fact that this amount was to cover the duty liability of the appellants is not disputed. He submits that the appellants have no authority or legal sanction to re-credit the amount they have paid towards the duty liability. He submits that there are legal provisions by way of statutory enactments and a well laid-down procedure for claiming such amount as refund. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Mafatlal Industries Limited (supra) has held that whatever amount has been paid to the department has to be claimed back if eligible by the route of refund under Section 11B, except for those payments which are ultra-vires. The Tribunal in the case of BDH Industries Limited (supra) has gone into the issue in detail and has held that such suo-moto re-credit cannot be taken. For better appreciation, relevant portion of the said decision is reproduced below:- 10. It was submitted that the above paragraph clearly state that all refund claim except those mentioned under the Proposition (ii) have to be and must be filed and adjudicated under the provisions of Central Excise and Salt Act or the Customs Act as the case may be. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the incidence of duty to others. The recent decisions of Hon ble Supreme Court in the case of Sahakari Khand Udyog and Others clearly laid down that all refunds have to pass through doctrine of unjust enrichment, even if it is not so expressly provided for in the statute. From these decisions it clearly emerges that all types of refund have to be filed under Section 11B of the Central Excise Act and no suo-moto refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. 5. We have carefully gone through the case laws submitted by the learned Counsel. It is observed that facts of the cases dealt with therein are different. In the case of ICMC Corporation Limited vs. CESTAT (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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