TaxTMI 
TaxTMI 
2015 (9) TMI 1025
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.... from July'96 to December'99 and dropped the proceedings initiated in the five SCNs. Consequent to the order, the appellants took suo motu recredit of amount paid by them. 3. Show cause notice dt. 18.10.2004 was issued to the appellant for recovery of credit of Rs. 33,38,695/- wrongly taken on 30.11.2003 along with interest and also proposed penalty. The adjudicating authority in OIO No.7/2005 dt. 13.6.2005 confirmed recovery of the amount and also imposed penalty of Rs. 10 lakhs under rule 13 of CCR. On appeal by the appellants, Commissioner (Appeals) in his OIA No.28/2006 (P) dt. 28.2.2006 remanded the case to the original authority with a direction to ascertain the fact of appellant's claim whether a refund claim was filed by the appellant or a notice under writing was submitted by the appellant before taking the re-credit and to consider the validity of the claim. The Additional Commissioner in his de novo order dt. 9.2.2007 again reconfirmed the amount with interest and also imposed a penalty of Rs. 10 lakhs under rule 13 of CCR. In the second round of appeal, Commissioner (Appeals) in the impugned order rejected their appeal. Both the adjudicating authority & C....
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....efund claim before the jurisdictional AC under Section 11B instead taken suo motu recredit. Further in spite of appellant's claim before Commissioner (Appeals) that their refund claim is still pending before the jurisdictional authorities he submits that during de novo proceedings they failed to produce any evidence to that effect. He relied on the following case law :- (i) Campus Service (India) Pvt. Ltd. Vs CCE Coimbatore 2008 (9) STR 259 (Tri.-Chennai) (ii) BDH Industries Ltd. Vs CCE(A) Mumbai 2008 (229) ELT 364 (Tri.-LB) 7. I have considered the submissions made by both sides and perused the records. The issue involved in this case is whether suo motu credit taken by the appellant after favourable order by Commissioner, without filing refund claim under Section 11B is correct or not and whether recovery of such credit ordered by the Department is valid or otherwise. 8. It is an undisputed fact that appellant was issued series of SCNs demanding differential duty on the excisable goods "Monocrotophos" (Technical Grade) manufactured and cleared by them appellant on payment of duty as pesticides under Chapter Heading 3808.10. Whereas department started investigation....
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....rayed for the refund of the amounts paid during the earlier period and that they are eligible for the refund as they have paid the differential duty for the period from November 96 to July 97 under protest as seen from RG23A Part II and RG 23C PII pertaining to the month of July 97. On perusal of the RG 23C PII for the month of July 97 it is noticed that they have paid differential duty of Rs. 1,22,775/-, Rs. 1,51,714/-, Rs. 4,544/-, Rs. 31,434/-, Rs. 1,62,212/- & Rs. 69,300/- mentioning as differential duty under protest and the differential duty Rs. 1,45,501/- without any protest. Further it is also noticed that they have paid the amount of Rs. 26,51,215/- voluntarily vide Sl.No.88 dated 9.07.97 of the RG23A PII. Therefore, it is observed that the assessee have paid the amount of Rs. 33,38,695/- as "differential duty" only and not as "deposit". The assessee's contention that they have always prayed for the refund of the amounts paid for earlier period is not acceptable as they have not produced any documentary evidence in this regard." 11. The adjudicating authority has clearly stated above that first six debit entries was paid under protest in July'97 and other two pa....
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....s been deposited by the appellant as a pre-deposit during the course of investigation. I find that Division Bench judgment of the Tribunal in the case of Motorola India Pvt. Ltd. and Toyota Kirloskar Auto Parts Pvt. Ltd. and also the decision of the coordinate bench in the case of Birla Ericsson Optical Ltd. is on the point that an amount which is deposited during investigation can be held only as a deposit and not duty. 8. I also find that the judgment of the Hon'ble High Court of Gujarat in the case of Shree Ram Food Industries (supra) very specifically dealt with this point that payment made by an assessee in pursuant to the direction of the lower authorities is not a voluntary payment and to be treated as a payment under protest" The above case law is squarely applicable to the present case. As already brought out in above paragraphs, it is evident that amount deposited during investigation is clearly established. Therefore the amount deposited during investigation is only a deposit and not central excise duty. 12. Notwithstanding above, on scrutiny of the extracts of relevant pages RG23A & RG23C Part II enclosed in the appeal book, I find that appellants hav....
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.... Ltd. Vs CCE (supra) held that appellant not intimating the department of taking suo motu re-credit is only technical and procedural lapse and liable to be condoned. The relevant paragraph is reproduced as under :- "8. I have carefully considered the submissions from both sides. This is a very strange case. There is no dispute about the fact that appellant is eligible for return of Rs. 5 lakhs made as pre-deposit in pursuance of the order of the Commissioner (Appeals). The Board's instructions envisages filing of a simple letter to enable grant of refund to the appellant. The appellant has filed letter dated 8-10-04. Instead of awaiting for cash refund, the appellant has chosen to take credit on 30-10-04 based on TR 6 challan by which the pre-deposit was earlier made. The Department has not regularised the matter even after the letter dated 4-11-04 of the party. Though the procedure adopted may be erroneous, in the peculiar facts and circumstances of the case, the question of demanding duty along with interest, treating clearances of goods paying duty using recredited amount as without payment of duty as required under - Rule 8 appears totally unwarranted. While no san....