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TMI Blog2016 (8) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... DER PER : RAMESH NAIR This appeal is directed against Order-in- Appeal No. PIII/VM/68/2011 dated 23/3/2011 passed by the Commissioner of Central Excise (Appeals-III), Pune whereby Ld. Commissioner(Appeals) upholding the Order-in-Original No. PVIII/44/Adjn/CEX/10-11 dated 29/10/2010 rejected the appeal. 2. The fact of the case is that appellant is engaged in the manufacture of Flushing System of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant submits that appellant had taken credit on the belief that duty was paid mistakenly which was not suppose to be paid, therefore they have taken suo moto credit during the period involved. There are various judgments available according to which suo moto credit was permitted, some are cited below: (a)Gujarat Alkalies & Chemicals Ltd Vs. Commr. C. Ex. Vadodara-II [2005(190) ELT 406(Tri. Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file refund claim under Section 11B of Central Excise Act, 1944. He referred the judgment in case of BDH Industries Ltd. Vs. Commissioner of Central Excise, Mumbai[2008(229) ELT 369 (Tri. LB)]. He submits that since there were conflicting views and matter referred to the Larger Bench the extended period cannot be invoked as held by the Honble Supreme Court in case of Continental Foundation Jt. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng views in some judgments the matter was referred to the Larger Bench and in the case of BDH Industries (supra) the Larger Bench has settled the conflict by holding that suo moto credit cannot be allowed and if at all any excess payment, remedy is to file refund claim under Section 11B, therefore in view of the conflicting views and matter finally decided by the Larger Bench, bonafide belief of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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