TMI Blog2008 (8) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 34/2004-05 dated 9-6-2004 and the balance excise duty is still pending. Thereafter, the Appellant suo motu took the credit of the said amount in their Cenvat Account on 27-12-2004 – held that - Larger Bench of the Tribunal observed that no suo motu refund can be taken unless and until the Department is satisfied that the incidence of duty has not been passed on - In any event, the Appellant ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - instead of Rs. 1,51,413/-. They paid excess amount of Rs. 1,51,775.00. It has informed that they received the rebate claim of Rs. 1,51,413/- vide Order No. 34/2004-05 dated 9-6-2004 and the balance excise duty is still pending. Thereafter, the Appellant suo motu took the credit of the said amount in their Cenvat Account on 27-12-2004. A show cause notice dated 3-11-2006 was issued to disallow th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules allowing suo motu taking of credit of refund without sanction by the proper officer. The appellant's contention that refund in respect of duty paid twice cannot be considered as refund of duty and is only the accounting error does not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has to be considered as refund of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all types of refund have to he filed under Section 11B of the Central Excise Act and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on." 3. On perusal of the aforesaid decision, it is seen that the Larger Bench of the Tribunal observed that no suo motu refund can be taken unless and until the Department is satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 11-11-2004. Whether it will be treated as a refund claim or not, will be decided by the Adjudicating Authority. 4. In view of that, the impugned order is set aside and the matter is remanded back to the Adjudicating Authority to decide afresh in the light of decision of the Larger Bench of the Tribunal as well as their letter dated 11-11-2004, in accordance with law. (Order dictated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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