TMI Blog2017 (3) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (Judicial) And Shri C J Mathew, Member (Technical) Shri P V Sadavarte, Advocate for the appellant Shri N N Prabhudesai, Superintendent (AR) for the respondent Per: C J Mathew: Dispute pertains to the availment of credit that had been reversed and recredited in breach of proper procedure. Facts in brief are that appellant, M/s Jayaswals Neco Ltd had availed credit of ₹ 16,60,225 which was disallowed by way of demand noted in assessment of return pertaining to April 1995. On the basis of this demand, appellant debited ₹ 15,14,372 in RG23C Part-II on 13 th October 1995 besides debiting ₹ 1,45,593 in PLA on the same day. Subsequently, this amount was taken as credit once again leading to initiation of proceedings against the appellant for denial of credit and imposition of penalty. 2. Commissioner of Central Excise, Nagpur vide impugned order no. 82/96 dated 28 th November 1996 ordered recovery of ₹ 16,60,225 under rule 57U of Central Excise Rules, 1944 and imposed penalty of ₹ 2,00,000 under rule 175Q (i)(bb) of Central Excise Rules, 1944 leading to this appeal. 3. The credit was availed in relation to goods that are claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was correct. We hold that the letter of the appellants in regard to suo motu taking the credit is not sustainable in law under the MODVAT Scheme. In this view of the matter, we hold that the impugned order issued as a consequence of the show cause notice under the provisions of the CESA, 1944 is sustainable in law on the admitted fact of this case. The crux of the controversy is whether the appellants would be eligible to take MODVAT Credit. The appellants were not eligible to take MODVAT Credit and therefore, the question of reversal of the credit wrongly taken by the appellants cannot be said to be under official compulsion to clothe the appellants with any right under law. Therefore, the suo motu act on the part of the appellants in taking the credit on 7-12-1993 has no warrant or basis under the provisions of law. The learned Counsel relied upon the ruling in the case of Dentifrices v. CCE, Cochin reported in 1994 (52) ECR 182 (Tribunal). This ruling is distinguishable from the facts of the present case. In the result, we uphold the impugned order and dismiss the appeal. this was sought to be reinforced. Learned Authorized Representative asserted that there is no provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vade payment of duty, by such person or his agent, the provisions of this sub-section shall have affect, (as if for the words Central Excise officer , the words Collector of Central Excise , and) for the words six months , the words five years were substituted. Explanation. - Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be. (2) (The Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise) shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purposes of this section - (i) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) relevant date means, - (a) in the case of excisable goods on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit our decision to that aspect alone. 8. We rely upon the decision of the Larger Bench of the Tribunal in BDH Industries Ltd v. Commissioner of Central Excise (Appeals), Mumbai-I [2008 (229) ELT 364 (Tri-LB)] which, in answering the reference arising from conflicting decisions, thus We have heard both sides on the issue referred to us viz. If an assessee avails suo moto credit of the amount of duty paid in excess by him, whether the view taken by the Tribunal in the case of Comfit Sanitary Napkins (I) Pvt. Ltd. -2004 (174) E.L.T. 220 will apply or the views taken by the Tribunal in the case of Motorala India Pvt. Ltd. - 2006 (193) E.L.T. 468 (T) = 2007 (7) S.T.R. 613 (T) = 2005 (71) RLT 334 will apply. 2. xxxxxx 3. In the case of Motorola. In this case the assessee has by mistake debited an amount of ₹ 1.58,098/- in excess in the PLA/Cenvat account in the month of March 2001 and thereafter asked the department for permission to take credit of the amount paid by mistake. The department however advised him to file a refund claim. The appellant however contended that the amount erroneously debited was not duty. A refund claim was filed after a y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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