TMI Blog2017 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... sra, Member ( Judicial ) For Applicant : None For Respondent : Shri L Patra, Authorised Representative ORDER Per: Dr D. M. Misra None present for the Respondent. Heard Ld AR for the Revenue. 2. This is an appeal filed against OIA No 91/2013(AhdIII)/ SKS/Commr(A)/Ahmd dt 27.5.2013 passed by the Commissioner (Appeals), Central Excise, Ahmedabad. 3. Brief facts of the case are that the appellant, a manufacturer of excisable goods, cleared the excisable goods availing the benefit of Notification No 10/1997 dt 1.3.1997 without payment of duty to M/s Bhabha Atomic Research Centre, Mumbai, during the period 9.12.2006 to 18.12.2007. Since, they did not maintain separate accounts for the use of common inputs in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than one year, they had taken credit themselves which is not authorized under the Act and Rules made thereunder. In support, he has referred to the judgments of the Larger Bench of the Tribunal in the case of BDH Industries Ltd Vs CCE (Appeals), Mumbai - 2008(229)ELT.364 (Tri. LB), Steelcon Gujarat Ld Vs CCE, Vadodara - 2014(314)ELT.605 (Tri Ahmd) and judgment of Hon ble High Court of Andhra Pradesh in the case of ITC Ltd Vs CESTAT, Bangalore - 2016(331)ELT.342 (AP). 6. I find that the short issue involved in the present case for determination as to whether the appellant could suo-moto take the credit of ₹ 4,52,673/- on 31.1.2012 reversed earlier on 4.11.2010 towards payment of interest. The contention of the Revenue is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund have to be filed under Section 11B of the Central Excise Act and no suo moto refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. 13. In view of the 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 appeals before it. 7. In view of the above, I do not find any reason to interfere with the impugned order of the Ld commissioner (Appeals), which is upheld and the appeal being devoid of merit is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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