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Wires and Fabriks (SA) Limited. Versus Commissioner of Central Excise, Kolkata-II

2016 (5) TMI 895 - CESTAT KOLKATA

Rejection of refund claim - duty was paid twice, once from cash and again from cenvat credit - Whether suo-motu credit of ₹ 3,46,820/ taken by the appellant on 28/2/2011 was legally correct or appellant was required to file a refund claim under Sec 11B ibid - Held that:- by relying on the decision of Larger Bench of the CESTAT in the case of BDH Industries Ltd. Vs. CCE (Appeals) Mumbai-I [2008 (7) TMI 78 - CESTAT MUMBAI] whose decision was taken by relying upon the ratio laid by Supreme Co .....

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1944 should be calculated from 16/3/2012 (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 e .....

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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. Sh. M. K. Choudhary (Advocate) appearing on behalf of the appellant submitted that appellant paid on amount of Rs, 3,46,820/- twice on 31/1/2011 both in cash as well as through Cenvat Credit account. That on realizing the mistake appellant took suo-moto Credit on 28/2/2011 in the cenvat acc .....

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al Excise Act 1944 as the duty was originally paid on 31/1/2011. That the order passed by the Adjudicating authority has been upheld by the first appellate authority under OIA dt 6/6/2013 against which appellant has filed appeal No. E/75653/14. The suo-moto credit of ₹ 3,46,820/- taken on 28/2/11 was separately confirmed by the Adjudicating authority under OIO No. 34/AC-34/HCD/Adjn/Kol-II/2012 dt 25/9/12 and a penalty of ₹ 1,73,410/- was imposed upon the appellant. That on an appeal .....

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Central Excise Act 1944 as held by the following case laws: (i). Neptune Industries Ltd. Vs CCE, Ahmadabad [2012 (280) ELT 528 (Tri-Ahmd). (ii). Raj Petro Specialties P. Ltd Vs CCE Vapi [2009 (246) ELT 489 (Tri. Ahmd)]. 2.2. That taking of suo-motu credit on 28/2/11 was correct as per the case law J.K Lakshmi Cement Ltd Vs CCE & ST, Jaipur-II [2015 (40) STR 618 (Tri-Del)]. 2.3 That in view of the above case laws the suo-moto credit taken was correct & no penalties could be imposed. That .....

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rine 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 .....

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for the purpose of calculating period of limitation under Sec 11B of the Central Excise Act 1944 should be calculated from 16/3/2012 (the date appellant paid the amount at the instance of the department) or 31/1/2011 when duty was paid twice by the appellant ? 4.1 Regarding the issue framed at Para-4 (i) above CESTAT (LB) Mumbai held in BDH Industries Ltd Vs CCE (Appeals) Mumbai-I (Supra) that all types of refunds have to be filed under Sec 11B of the Central Excise Act 1944 and no suo-motu cre .....

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refund of these amounts has to be considered as refund of duty only. The PLA account and the credit accounts are required to be submitted to the department and any correction carried therein, need to have department s sanction. We also note that the law relating to refund has been fully analysed by the Apex Court in the case of Mafatlal Industries (cited supra) which makes it very clear that all types of refund claim be there of excess duty paid or otherwise are to be filed under Section 11B and .....

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partment is satisfied that the incidence of duty has not been passed on. 13. In view of above, we answer the reference made to us by holding that all types of refund have to be filed 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 Jaipu .....

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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 decision was not considered by the Larger Bench of this Tribunal in the BDH Industries Ltd. (Supra) which was delivered on 9-7-2008. T .....

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nvat credit as well as in cash. Therefore, the following decision of the Hon ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (supra) and as S. Subramanyan & Co. (supra) of the Hon ble High Court of Gujarat, I hold that appellant has correctly taken the suo motu credit. 10. In these circumstances, I set aside the impugned order and allow the appeal with consequential relief, if any. 4.2 It is observed from the case records that none of the case laws relied upon by the Appe .....

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red to be filed. However, as the issue was disputable & conflicting views were expressed by the courts penalty imposed upon the appellant is not justified and is set aside. 5. So for as point at Para- 4 (ii) above is concerned, appellant has argued that they have filed refund claim on 16/3/2012 for which the relevant date will be 16/3/2012, when duty was paid at the instance of the department and not 31/1/2011 when duty was earlier paid twice by the appellant. It is observed from the lager .....

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mitted 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 bec .....

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gain because of advice by the department and a refund claim was filed. The Tribunal took the view that appellants cannot be penalized for action taken by them at the instance of Revenue Authorities which itself was not in accordance with law. In this case also appellants took suo motu credit on 17-3-2009. On being advised by the Range Superintendent, the entries were reversed on 22-5-2009. It has to be noted if the Range Superintendent were to advise the appellant to file a refund claim immediat .....

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