TMI Blog2019 (6) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... ribes inter alia, the time limit for filing of refund application and fulfilment of the aspect of doctrine of unjust enrichment. Since the issue involved in this case pertains to double payment of duty on transformer oil, the only recourse left to the appellants was to claim refund of the excess duty paid by it, in terms of Section 11B ibid, which admittedly has not been complied with by the appellants. The applicants have also taken the stand that since they have availed suo motto credit within one year from the date of payment of the duty amount, such availment of credit should be treated as refund claim. We are of the considered view that such stand of the appellants are not legally tenable, for the reason that Section 11B of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transformers. The said oil was subsequently supplied on payment of appropriate central excise duty. The appellants realized their mistake that duty liability had been discharged twice on transformer oil. Accordingly, they had taken credit of Central Excise duty paid on such oil in their Cenvat account. Taking of suo motto credit by the appellants was disputed by the department and show cause proceedings were initiated, seeking for recovery of the wrongly availed Cenvat Credit along with interest and for imposition of penalty. The show cause notice dated 04.10.2007 was adjudicated vide order dated 02.02.2009, wherein the proposals made therein were dropped, on the ground that the appellants indeed had made payment of excise duty on two occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said judgment of Hon ble Karnataka High Court, the decision of Tribunal in case of Comfit Sanitary Napkins (supra) gets vitiated and as such, reliance placed on the said decision in the impugned order for allowing the appeal of Revenue is not sustainable. With regard to applicability of the ratio of judgment in the case of BDH Industries Ltd. (supra) to the facts of the present case, he has submitted that an appeal filed against the said judgment has been admitted by the Hon'ble Bombay High Court and as such, its precedential value is in jeopardy. The Learned Advocate also relied upon the following judgments delivered by the judicial forums, to state that taking of suo motto credit is a mere book adjustment and in absence of outflow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns contained in the central excise statute, allowing the assessee to take suo motto credit, the only remedy available was for filing of refund application, which admittedly has not been complied with by the appellants. Thus, he contended that the impugned order passed by the Learned Commissioner (Appeals) is proper and justified. 4. Heard Shri Sachin Chitnis, Learned Advocate for the appellants and Shri N.N. Prabhudesai, Learned AR for Revenue. Perused the case records, including the synopsis filed by both sides. 5. Section 3 of the Central Excise Act, 1944 is the charging section, which determines a taxable event and also provides that the duty of excise, to be called as the Central Value Added Tax (CENVAT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of suo motto credit in the Cenvat account by the manufacturer. Since the issue involved in this case pertains to double payment of duty on transformer oil, the only recourse left to the appellants was to claim refund of the excess duty paid by it, in terms of Section 11B ibid, which admittedly has not been complied with by the appellants. 7. The Constitutional Bench of Hon'ble Supreme Court, in the case of Mafatlal Industries Ltd. (supra) have dealt with the situation, where the tax or duty is collected by the authorities under the Act by mis-construction or wrong interpretation of the statutory provisions. It has been held that in such type of case, the claim for refund arises under the provisions of the Act and a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments relied upon by the appellants are not applicable to the facts of the case in hand inasmuch as the ratio laid down by the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) has not been considered by the judicial forums. Further, the Cenvat statute has also not mandated taking of suo motto credit, in the situation of payment of excess duty amount. Furthermore, the relied upon judgments dealt with the situation of adjustment/correction of wrong entry in the Cenvat account and not in context with payment of duty on removal of the excisable goods from the factory. Hence, those relied upon judgments are distinguishable from the facts and issue involved in the present case. 10. In view of the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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