TMI Blog2017 (12) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents firm - Rule 26 (2)(ii) of Central Excise Rules read with Cenvat Credit Rules 2004 - Held that: - The Order-in-Original points out that the Managing Director had by his statement dated 21.01.2014 stated that ER1 return filed by them indicate that certain amount was reversed in October 2009 on account of wrong credit taken a year back. The said statement was incorrect, and thus his involvement cannot be ruled out - penalty rightly imposed. Refund in respect of duty paid twice - unjust enrichment - Held that: - there is no provision under Central Excise Act and Rules allowing suo moto taking of credit or refund without sanction by the proper officer. The appellant’s contention that refund in respect of duty paid twice cannot be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed that the respondents have reversed part of the said amount during the period 30.04.2015 to 11.06.2016. He pointed that the Commissioner (Appeals) has allowed setting off duty wrongly paid on exempted goods. He argued that in terms of decision of the Larger Bench in BDH Industries Ltd. - 2008 (229) ELT 364 (Tri-LB) such adjustment is not permissible. He pointed that in such cases respondents should have filed a refund claim which should have been dealt with separately. He further argued that in these circumstances, the penalty imposed on the respondents as well as the director has wrongly been set aside as both had clear role in the wrong availment. 3. Ld. Counsel for the respondents argued that the wrong availment was purely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Managing Director had by his statement dated 21.01.2014 stated that ER1 return filed by them indicate that certain amount was reversed in October 2009 on account of wrong credit taken a year back. The said statement was incorrect, and thus his involvement cannot be ruled out. Penalty imposed under Rule 26 (2)(ii) of Central Excise Rules read with Cenvat Credit Rules 2004 is therefore correctly imposed in the Order-in-Original. 8. Adjustment of duty excess paid has been allowed while confirming the demand of cenvat credit relying on the decision in the case of Yamuna Gases Chemicals (supra). As against this, ld. AR relied on the decision of the Larger Bench in BDH Industries Ltd. (supra). The Larger Bench in the said ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been passed on. 9. Moreover, it is seen that the Commissioner (Appeals) has examined the issue of unjust enrichment but the issue of limitation has not been examined while allowing the adjustment of said excess duty paid. Prima facie the said amount of duty excess paid was clearly barred by limitation. It is seen that the Commissioner (Appeals) has held that there is no unjust enrichment as the respondents have not collected the duty from the clients. It is seen that at the material time, the respondents were selling the goods on the basis of MRP. In these circumstances, the MRP includes the duty and thus it cannot be held that the respondents had not recovered the duty from the ultimate customer. It is also seen that the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
