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2016 (8) TMI 236 - CESTAT MUMBAI

2016 (8) TMI 236 - CESTAT MUMBAI - TMI - Suo-mot availing credit of excess duty paid - The appellant mistakenly paid the excise duty on the transportation which was otherwise not required to be paid extended period of limitation - Held that: suo moto credit not permissible. Remedy available is refund claim under section 11B. No suppression of fact on the part of appellant. Demand cannot be raised under proviso to Section 11A(1), accordingly extended period cannot be invoked appeal allowed o .....

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der-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 Plastic on which they are paying duty on MRP based valuation under Section 4A of the Central Excise Act, 1944. The appellant mistakenly paid the excise duty on the transportation which was otherwise not required to be paid and subsequently they have taken suo moto credit in their Cenvat account for the amount of duty paid .....

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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)] (b)Visakhapatnam Steel Plant Vs. Commr. C. Ex. Vasakhapatnam[2002(149) ELT 708 (Tri. Bang.)] (c)Commissioner of Central E .....

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was referred to the Larger Bench due to conflicting judgments of the issue. The Larger Bench decided that suo moto credit is not permissible and only remedy is to 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 th .....

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