TaxTMI 
TaxTMI 
2010 (1) TMI 407
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....(Appeals) whereby the appeal filed by the appellants against the order dated 23-6-2006 by the Assistant Commissioner was dismissed. By order dated 23-6-2006, the Assistant Commissioner had held that the appellants were liable to pay interest amounting to Rs. 5788/- for having utilized the credit unilaterally and without prior sanction, besides an amount of Rs. 3859/- was due to the Revenue in terms of Order-in-appeal No. 84/RPR-I/2005 dated 10-8-2005 and, therefore, sum of Rs. 5788 + Rs. 3859/- should be deducted from the amount of Rs. 2.50,000/- refundable to the appellants. 4. The Appeal No. 3212/07 arises from the order dated 21-5-2007 passed by the Commissioner (Appeals) whereby the order of the Assistant Commissioner dated 23-6-2006 was modified at the instance of the Department whereby the facility extended to the appellants to pay the duty in monthly instalment under sub-rule (1) of Rule 8(3A) for a period of two months was forfeited and the appellants were directed to pay the duty on each consignment of the goods from the account current in terms of Rule 8(3A) of the Central Excise Rules, 2002, besides imposing penalty of Rs. 10,000/- under Rule 25 of the said rules. ....
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.... passed by the Commissioner (Appeals) and ultimately they had succeeded in the appeal and, therefore, it was required to be refunded unconditionally. The CBEC vide Circular dated 2-1-2002 stipulated that the refund of pre-deposit could be claimed by making of simple request. Though the order of the Commissioner (Appeals) was challenged before the CEGAT, the Department could not obtain stay of the order passed by the Commissioner (Appeals). The appellants, therefore, prayed for refund of the amount. 7. The Assistant Commissioner, Raipur after hearing the parties held that though the appellants had taken suo motu credit, it was reversed by making fresh deposit of Rs. 2,50,000/- against TR-6 challan No. 10/05 dated 26-11-2005 and therefore claim for refund could not be rejected. It was further held that as to whether they were entitled to take credit suo motu or not was a matter of interpretation of provision of law and, therefore, there is no case for action under Rule 8(3A). For the same reason, there was no case for imposition of penalty. It was however held that it was undisputed fact that the appellants had taken credit of Rs. 2,50,000/- on 22-9-2005 which was reversed by them....
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....(Tri.-Del.) = 2007-TIOL-592 CESTAT (Del.) it was observed that the Tribunal therein had clearly held that the suo motu availment of credit was erroneous and though the said decision was in relation to the availment of suo motu credit in modvat account of the duty paid erroneously ratio thereof was held to be squarely applicable to the facts of the case and, therefore, the Department was held to be justified in contending that the appellants had defaulted in payment of duty by due date and hence the facility to pay the duty in monthly instalment was liable to be forfeited for a period of two months and they were to be directed to pay the duty on each consignment of goods from current account in terms of Rule 8(3A) of the said rules and accordingly the order of the Assistant Commissioner in that regard was modified, apart from imposing penalty of Rs. 10,000/-. 10. The appellants have sought to challenge both the orders passed by the Commissioner (Appeals) on the following grounds :- "1. For that it is the accepted principle of law that any pre-deposit required to be made by any Appellant in terms of the Stay Order of the Appellate Authority is liable to be ref....
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....the amount deposited in terms of stay order, on having succeeded in the appeal, can be retained by the Department or should it be unconditionally refunded to the appellants? 12. It is pertinent to note that the records placed before me clearly justify the findings of facts arrived at by the lower authorities. It is a matter of record that the appellants availed the credit suo motu without waiting for sanction by the authority for necessary order in that regard. It is also a matter of record that amount of Rs. 3859/- was due and payable by the appellants to the Department in terms of Order-in-appeal No. 84/RPR-1/2005 dated 10-8-2005. 13. Rule 8(3A) of the Central Excise Rules, 2002 as was in force during the relevant period stipulated thus :- "If the assessee defaults in payment of duty by the date prescribed in sub-rule (2) and the same is discharged beyond a period of thirty days from the said date, then the assessee shall forfeit the facility to pay the duty in monthly instalments under sub-rule (1) for a period of two months, starting from the date of communication of the order passed by the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central ....