TaxTMI 
TaxTMI 
2011 (10) TMI 428
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....ppellant, M/s. Vighnahar SSK Ltd., Pune, are manufacturers of excisable goods falling under Chapter Nos. 17 & 22 of the Schedule to the CETA, 1985. The appellant paid an amount of Rs. 5,48,144/- vide Cenvat Entry No. 5 dated 21-1-2006 towards differential duty liability on account of additional duty in respect of sugar cleared during the period from 1-3-2005 to 12-5-2005. They had discharged additional excise duty liability @ Rs. 21/- per quintal and they were supposedly advised by the officers, who visited the factory that the correct rate of duty was Rs. 37/- per quintal. The appellant also paid interest of Rs. 57,861/- on the delayed payment of additional from the Cenvat account on 21-1-2006. Later on, the appellant realized that the cor....
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....d that the assessee was entitled for the credit of Rs. 5,48,144/-, which they had wrongly debited due to wrong advice given by the excise officers. The department preferred an appeal against the said order before the Commissioner (Appeals). 2.3 The ld. Commissioner (Appeals) observed that in view of the Larger Bench's decision in the case of BDH Industries Ltd. - 2008 (229) E.L.T. 364 any correction in the PLA or Cenvat Credit account needed to have departmental sanction and in the absence of legal provision for availing suo motu credit, any re- credit taken by the appellant has to be treated as a refund and the procedure laid down under Section 11B of the Central Excise Act needs to be scrupulously followed. Accordingly, he set aside....
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.... 4. The ld. AR appearing for the department submits that in the BDH Industries Ltd. v. C.C., Mumbai reported in 2008 (229) E.L.T. 364 (Tri. - LB), the Larger Bench of this Tribunal held that there is no provision under the Central Excise Act, 1944 and Rules made thereunder allowing suo motu taking of credit or refund without sanction by the proper officer. In view of the Larger Bench decision the appellant could not have taken suo motu re-credit of the duty wrongly paid and the appellant should have filed a refund claim for the wrong payment of duty. He further points out that the original debit in the Cenvat account was made on 21-1-2006 whereas the re-credit was taken on 18-6-2007, that is, almost 11/2 years after making the payment.....
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.... permission of the department to take suo motu credit. The jurisdictional range superintendent informed the assessee that they cannot take suo motu credit and proper sanction from the competent authority has to be obtained. In spite of such advice, the appellant chose to ignore the same and took suo motu Credit on 18-6-2007. The appellant did not file any refund claim and even if they had filed one in May or June 2007, the said claim would have been rejected as time-barred. When a properly filed refund claim itself would have been found to be time-barred, the question of taking suo motu credit after a lapse of 11/2 years from the date of payment does not arise at all. 7. The Larger Bench of this Tribunal in the case of BDH Industries ....
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....y has not been passed on. 13. In view of 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 motu 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 appeal before it." 8. This decision of the Tribunal is based on the decision of the Apex Court in the Mafatlal Industries case reported in 1997 (89) E.L.T. 247 wherein the Hon'ble Apex court had held that refund claims pertaining to excess duty paid are to be filed under Section 11B and will have to pass the test of unjust enrichment, even if it is not so expressly provided for in....