TMI Blog2016 (5) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... (the date appellant paid the amount at the instance of the department) or 31/1/2011 when duty was paid twice by the appellant - Held that:- by respectfully following the ratio laid down by the CESTAT Ahmedabad in the case of Neptune Industries Ltd Vs CCE Ahmedabad [2011 (12) TMI 368 - CESTAT, AHMEDABAD] and Raj Petro Specialties P. Ltd Vs CCE Vapi [2009 (5) TMI 603 - CESTAT, AHMEDABAD], it is held that 'relevant date' for filing the refund claim in the existing facts will be 16/3/2012 and accordingly refund claim was not time barred. - Decided in favour of appellant with consequential relief - Appeal No. E/75601/2014 & 75653/2014 - Order No. FO/A/75360-75361/16 - Dated:- 9-5-2016 - SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner : Shri N. K. Choudhary Adv. For the Respondent : Shri A. Roy, Suptd (AR) ORDER PER SHRI H.K.THAKUR Appellant has filed these appeals against OIA No. 31-32/Kol-II/2013 dt 5/6/2013 and OIA No. 33/KOl-II/2013 dt 6/6/2013 passed by CCE (Appeals) Kolkata-III, as first appellate authority. As the facts of both the proceedings are interconnected, therefore, the same are being taken up for disposal under this common order. 2. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of the department. 3. Sh. A. Roy Supdt (AR) appearing on behalf of the Revenue on the other hand argued that as per the larger bench judgment in the case of BDH Industries Ltd. Vs CCE (Appeals) Mumbai-I [2008 (229) ELT 364 (Tri-LB)] appellant cannot take suo-motu credit of duty paid twice was required to file a refund claim under Sec 11B of the Central Excise Act 1944 to test the doctrine of unjust enmeshment time bar. Learned AR made the bench to through Para-12 of the lager bench case law BDH Industries Ltd Vs CCE (Appeals) Mumbai-I (Supra). It was also his case that first date of payment of duty (31/1/2011) has to be considered as relevant date for calculating time of filing of refund claim under Sec 11B of the Central Excise Act 1944 and refund claim being filed on 16/5/2012 was time barred. Learned AR thus strongly defended the orders passed by the first appellate authority and also relied upon Vighnahar SSK Ltd. Vs CCE Pune [2012 (275) ELT 108 (Tri-Mumbai)]. 4. Heard both sides perused the case records. The issues involved in these proceedings, required to be deliberated upon for deciding the present appeals, are as follows; (i) whether suo-motu cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led under Central Excise Act and Rules made thereunder and no suo moto credit of the duty paid in excess may be taken by the assessee. The matter is now sent back to the referral bench for passing appropriate orders on the appeal before it. 4.1.1 CESTAT Delhi in the case of S.K. Lakshmi Cement Ltd. Vs CCE ST Jaipur-II (Supra) however did not follow LB judgment in the case of BDH Industries Ltd Vs Commissioner (Supra) by relying upon Karnataka High Court s order in the case of Commissioner Vs Motorola Industries Pvt. Ltd [2006 (206) ELT 90 (Kar)] and Gujarat High Court s case law Commissioner Vs. S. Subramanyam [2013 (296) ELT A 123 (Guj)]. Following observations were made by the CESTAT DELHI bench while distinguishing BDH Industries Vs CCE (Appeals) Mumbai-I (Supra);- 9. The ld. AR strongly has relied on the decision of Larger Bench in the case of BDH Industries Ltd. (supra) wherein it was held that the suo motu credit is not available but in the case of Motorola India Pvt. Ltd. (supra) the Hon ble High Court of Karnataka already held that the suo motu credit can be taken in case of duty has been paid twice, which decision was delivered on 19-7-2006 and the said decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Industries Ltd Vs CCE Ahmedabad (Supra) where following view was expressed in Para-6;- 6. As regards the first question as to whether appellants could have taken re-credit of the debit entry made by them on 30-3-2008, as submitted by the learned counsel the issue is covered by the decisions of the Tribunal cited above. In all these cases, the decision of the Larger Bench was cited and taken note of and distinguished. Therefore the submissions made by the learned counsel that they were entitled to suo motu credit and therefore there was nothing wrong in availment of the credit has to be sustained. Once this is sustained, if the credit entry becomes a legal entry, the relevant date for the purpose of refund claim becomes the date on which reversal of its entry was made and refund claim was filed. Accordingly, the rejection of the refund claim on the ground of the limitation has to be set aside. Further, the case of the appellants is also supported by the decision of the Tribunal in the case of Raj Petro Specialities P. Ltd. In that case also, appellant had paid the tax on GTA service in cash and reversed the debit entries made in the cenvat credit account. However, the re-cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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